Petition for Writ of Certiorari — Catholic League for Religious & Civil Rights v. City & County of San Francisco

Supreme

P F | s ak US.

NI,

No. OFFICE OF THE CLEQK

$n the Supreme Court of the Anited States

ATHOLIC LEAGUE FOR RELIGIOUS AND CIV]

RIGHTS, DR. RICHARD SONNENSHEIN

VALERIE MEEHAN

CITY AND COUNTY OF SAN FRANCISCO, AARON

PESKIN, in his official capacity as President, Board of

supervisors for San Francisco, and TOM AMMIANO

his official capacity as a Supervisor, Board of

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Supervisors for»

an Irancisco.

PETITION FOR WRIT OF CERTIORAR

BERT JOSEPH MUI

Counsel of Record

['HOMAS More Law Cent!

24 FRANK LLoyD Wricut D)

P.O. Box 393

ANN ArBor, MI 481

(734) 827-2001

muise@thomasmo}

Mebruary lod, 20]

Recker Gallagher Cin . las { 800.890. 500

QUESTIONS PRESENTED

An en banc panel of the U.S. Court of Appeals for

the Ninth Circuit was presented with the question of

whether an official resolution (Resolution 168-06)

unanimously passed by the Board of Supervisors for

the City and County of San Francisco that expressly

condemned the religion of its Catholic citizens violates

the Establishment Clause. In a fractured opinion,

three judges found that Petitioners had standing and

should prevail on the merits; three judges found that

Petitioners had standing and should not prevail on the

merits; and five judges found that Petitioners lacked

standing and thus did not reach the merits of the

Establishment Clause claim

1. Whether the Court’s modern [Establishment

Clause jurisprudence involving government

speech—whether explicit or symbolic—is unworkable

and leads to inconsistent results such that a

substantial revision is necessary to ensure uniformity

of decisions by the lower court

Resolution 168-06 is set

petition

The confusion over standing is a direct result of the flawed

jurisprudence that produced it. Indeed, “offended observer”

standing is made possible by the endorsement test, which Justice

O’Connor created in Lynch v. Donnelly, 465 U.S. 668, 688 (1984)

(O’Connor, J., concurring). But see Cnty. of Allegheny v. ACLU,

492 U.S. 573, 669 (1989) (Kennedy, J., concurring in judgment in

part and dissenting in part) (“|T]he endorsement test is flawed in

its fundamentals and unworkable in practice. The uncritical

adoption of this standard ts every bit as troubling as the bizarre

result it produces in the cases before us.”)

Whether a doublk Standaara eXI1SU!

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speech that disfavors religion, requiring the Court t

stablishment Clause challenges to governmet

resolve the conflict by clarifying its jurisprudence ai

setting forth the appropriate test for such case:

3. Whether the Court should summarily reve)

the en banc decision because it directly and sharply

conflicts with controlling law and perpetuates

regrettable perception that the Establishment Cl

is hostile toward religion

ONnaGe!n

incisco (“San Francisco’ or “City”), Aaron Pe

official capacity as President, Board of S

|

r San Francisco, and Tom Ammiuano, 1n his

pacity as a Supervisor, B

TABLE OF CONTEN’

ESTIOD} PRESENTE

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NION BI

RISDI¢

INSTITUTI

TEMENT ¢ CH

it

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REASONS FOR GRANTING THE PETITIO

THE COURT'S CURRENT ESTABLISHMENT

CLAUSE JURISPRUDENCE ISIN DISARRAY

AND LEADS TO “SILLY” RESULTS THAT

ARE INCONSISTENT WITH OUR NATION’S

HISTORY AND TRADITIONS

THE COURT SHOULD ADOPT A

RATIONAL BASIS STANDARD OF REVIEW

FOR GOVERNMENT “RELIGIOUS”

SPEECH THAT IS REASONABLY

RELATED TO OUR NATION’S HISTO!

AND TRADITIONS

THE COURT SHOULD ADOPT A STRIC1

SCRUTINY STANDARD OF REVIEW FOR

GOVERNMENT “RELIGIOUS” SPEECH

THAT IS NOT REASONABLY RELATED

TO OUR NATION’S HISTORY AND

TRADITIONS.

THE EN BANC DECISION CONFLICTS WIT!

DECISIONS FROM THIS COURT AND

OTHER CIRCUIT COURTS, AND I11

PRESENTS AN ISSUE OF NATIONAI

IMPORTANCE

THE ESTABLISHMENT CLAUSE

SHOULD N OT TOLERATE

GOVERNMENT SPEECH THAT

EXPRESSLY DISFAVORS RELIGION

THE EN BANC DECISION DIRECTLY AND

SHARPLY CONFLICTS WITH

ESTABLISHED PRECEDENT AND

PROMOTES A PERCEPTION THAT THE

LAW {S HOSTILE TOWARD RELIGION

CONCLUSION

APPENDIX

Opinion, United States Court

Appeals for the Ninth Circuit

(October 22, 2010)

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08-56415, 08-5643¢

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YUS

Out Leaes mraawinai ‘ Lbil

evada, in fits capacity as head of th

ongpregation for the Doctrine of the Fatt

( the Vatican, lo withdrau hj

liscriminatory and defamatory direct

hat Catholic Charities of the Archdiocese

fSan Francisco stop placing children

eed ot adoptie

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Re the Vatican eddl

negatively influence

existiny L est

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hildren” are absolutely unacceptabl

» the citizenry of San Francisco

VHEREAS, Sucl hateful

liscriminatory rhetoric 1

insulting and callous, and shows

evel of insensitivity and ignorane

vhich has seldom been encount

® s Board of Su}

VHEREAS, San 1

ualified to b pare

eTerosceyxi |

VHEREAS, Cardinai UC

decidedly unqualified representatii

f his former home city, and of tl

people of San Francisco

y 77 oY

4 4 ¥ sy

Y /LOta dea

VHEREAS, Thi a

rges Archbishop Niederauer and

atholic Chanities of the Archdiocs

an Francisco t¢ defy

liscriminatory directives

HSOLVED

ipervisors urges Cardinal Wallia

evada, in his capacity as head of t

‘ongregation for the Doctrine of the Fait

it the Vatican (formerly known as Hol

Office of the Inquisition), to withdrav

his discriminatory and defamatory

tive that Catholic Charit}

}

Archdiocese of San Francisco stop placing

children in need of adoption with

homosexual households.’

It is important to bear in mind that the

“discriminatory directive” that was the subject of this

resolution was from the Congregation for the Doctrine

of the Faith to a Catholic organization. I[t was not

directed to the City, any other governmental entity o1

agency, or other private party

Petitioners object to and have been injured by the

anti-Catholic resolution adopted by the City. The

City’s resolution attacks Petitioners’ deeply held

religious beliefs, conveys an _ impermissible,

government-sponsored message of disapproval of and

hostility toward the Catholic religion, and sends a

clear message to Petitioners that they are outsiders

not full members of the political community. App. 7a

Petitioners Sonnenshein and Meehan have had

direct contact with and have been injured by the

offending resolution, which stigmatizes Petitioners on

account of their religious beliefs. Petitioners

Sonnenshein and Meehan, who are citizens and

municipal taxpayers of San Francisco, have been

injured by the abuse of government authority and the

misuse of the instruments of government to criticize,

demean, and attack their religion and religious beliefs,

thereby chilling their access to the government. As :

result of the City’s anti-Catholic resolution, Petitioner

S.F. Res. No. 168-06 (Mar. 21, 2006), available ;

http://www.sfbos.org/ftp/uploadedfiles/bdsupvrs/resolutionsO6/1

0168-06.pdf. (emphasis added)

nnenshein and Meehan have and will continue

curtail their activities to lessen their contact with

Respondents, thereby causing further harm

Petitioner Catholic League, through its members, ha

been similarly injured and harmed by Respondent

ictions. See App 43a

The effect of the City’s anti-Catholic resolution

which remains posted on the City’s official website, is

the same as posting a large sign on the front door to

city hall reading, “Catholics are not welcome in San

Francisco.” See App. 16a-17a, n.33 (“The government

[cannot] condemn religion by erecting a gigantic sign

on city hall of a cross with a line through it: a ‘no

Christianity sign with the design of a ‘no smoking’

sign. The Board’s resolution accomplishes the same

thing as the aforementioned sign, but even mor

plainly and unambiguously.”

Pope Paul III established the Congregation f

the Doctrine of the Faith a half millennium ag:

[t safeguards and promotes Catholic doctrine o1

faith and morals. In 2003, the Congregatior

addressed homosexual marriage and adoption

concluding that both were immoral, and that it

was the moral duty of Catholics to oppose both

To carry out this doctrinal decision, Cardinal!

William Joseph Levada directed the Archdiocese

of San Francisco that Catholic agencies should

not place children for adoption in homosexual

households San Francisco immediately

responded with official hostility. The San

Francisco Board of Supervisors adopted thi

aa)

esolution giving rise to this lawsuit

| i -_ , r iL .

resolution urges the Cardinal to withdraw

instructions; denounces the Cardinal’s directiv

as “meddl[ing]” by a “foreign country”; calls

“hateful,” “insulting,” and “callous”; and urg

the local archbishop and Catholic Chariti

‘defy” the Cardinal’s instruct

The Procedura

Petitioners sued the City, claiming that this offic

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sovernment resolution violates the Establishment

Clause. The district court dismissed the lawsuit fo.

failure to state a claim upon which relief could b

granted, App. 115a-138a, and a panel of the Ninth

Circuit initially affirmed, App. 86a-114a. The Ninth

Circuit then voted to rehear the case en banc, Ap]

84a-85a, and affirmed the district court’s dismissal «

differing grounds, as noted previously, App. la-83

REASONS FOR GRANTING THE PETITION

THE COURT’S CURRENT ESTABLISHMENT

CLAUSE JURISPRUDENCE IS IN DISARRAY

AND LEADS TO “SILLY” RESULTS THAT

ARE INCONSISTENT WITH OUR NATION’S

HISTORY AND TRADITIONS.

Courts modern Establishment

at : . _ - T~ +4 ype 7? Darcon)} . ,

jurisprudence isin “hopeless disarray,” Rosenberger

Rector & Visitors of Univ. of Va., 515 U.S. 819, 86

1995) (Thomas, J., concurring in the judgment

in need of “[s]ubstantial revision,” Cnty. of Alleghen

ACLU, 492 U.S. 573, 656 (1989) (Kennedy

YCUrTINE IT part ind dissent , : ~ a,

Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist.,

508 U.S. 384, 399 (1993) (Scalia, J., concurring in the

judgment) (“I agree with the long list of constitutional

scholars who have criticized Lemon and bemoaned the

strange Establishment Clause geometry of crooked

lines and wavering shapes its intermittent use has

produced.”)

This case 1s a “poster child” for the inconsistent

results caused by the Court’s muddled Establishment

Clause case law. Thus, it provides an opportunity to

abandon this unworkable jurisprudence in favor of one

that respects our Nation’s religious heritage, history,

and traditions and that eschews the “crooked lines and

wavering shapes” produced by the status quo

Unfortunately, under the current jurisprudence, the

closest measure for predicting the outcome of a

particular case is the personal predilections of the

judge or judges deciding it. Van Orden v. Perry, 545

U.S. 677, 697 (2005) (Thomas, J., concurring) (“The

unintelligibility of this Court’s precedent raises the

further concern that, either in appearance or in fact,

adjudication of Establishment Clause challenges turns

on judicial predilections.”)

While a majority of the en banc Court found that

Petitioners had standing to advance their

Establishment Clause claim,’ that ruling is hollow

comfort given the fact that the circuit court also

confirmed the constitutionality of the City’s anti

As Circuit Judge Kleinfeld noted in his majority opinion o!

standing, “it would be outrageous if the government of San

Francisco could condemn the religion of its Catholic citizens, yet

those citizens could not defend themselves in court against their

rovernment’s preferment of other religious views.” App. 8a

Catholic resolution. This ruling on the merits is

troubling given that under this Court’s extant

jurisprudence, “a mere message of disapproval, even in

the absence of any coercion,’ allegedly suffices for an

Establishment Clause violation under Lemon.” See

App. 27a; see Lynch v. Donnelly, 465 U.S. 668, 690

(1984) (O’Connor J., concurring in the judgment) (“The

purpose prong of the Lemon test asks whether

government’s actual purpose is to endorse or

disapprove of religion. The effect prong asks whether,

irrespective of the government’s actual purpose, the

practice under review in fact conveys a message of

endorsement or disapproval. An affirmative answer to

either question should render the challenged practic«

invalid.”).

As Circuit Judge Kleinfeld appropriately observes

The “message” in the resolution, unlike, say, th

message that might be inferred from some

symbolic display,* is explicit: a Catholic doctrine

Though not yet adopted by a majority opinion from this Court,

a test focusing on actual legal coercion, rather than endorsement,

would perhaps be more faithful to the original meaning of the

Establishment Clause. See Van Orden, 545 U.S. at 693 (Thomas,

J., concurring); Lee v. Weisman, 505 U.S. 577, 640-43 (1992)

(Scalia, J., dissenting). Indeed, coercion could be found here as

between the City and the Archdiocese of San Francisco, to which

Petitioners, as Catholics, are members. Nevertheless, as the

Court’s jumsprudence currently stands, the endorsement enquiry

does not require coercion

‘lt is perhaps ironic (and no doubt tragic for the family member:

of the servicemen and servicewomen who are honored by the Mt

Soledad war memorial) that the Ninth Circuit recently held

unconstitutional the longstanding display of a cross atop Mt

duly communicated by the part of the Catholi

church in charge of clarifying doctrine

“hateful,” “defamatory,” “insulting,” “callous,”

and “discriminatory,” showing “insensitivity and

ignorance, the Catholic Church is a hateful

foreign meddler in San Francisco’s affairs, the

Catholic Church ought to “withdraw” it:

religious directive, and the local archbishop

should defy his superiors directive. This is

indeed a “message of... disapproval.” And that

is all it takes for it to be unconstitutional

App. 27a-28a (emphasis added)

Justice Thomas summed it up best in

concurring opinion in Elk Grove Unified Sch. Dist. t

Newdow, 542 US. 1, 45 nl (2004) “Our

jurisprudential confusion has led to results that can

only be described as silly.” (Thomas, J., concurring in

the judgment) (emphasis added); see also Edwards |

Aguillard, 482 U.S. 578, 639 (1987) (Scalia, J

dissenting) (criticizing the Court’s “embarrassi1

Establishment Clause jurisprudence”

Indeed, inconsistent results—results which tend t

sfavor religion and thus call into question the ver

Soledad in San Diego, California—a passive symbol that is an

integral part of a national war memorial. See Trunk v. City of San

Diego, Nos. 08-56415, 08-56436, 2011 U.S. App. LEXIS 53 (9th

Cir. Jan. 4, 2011). As Circuit Judge Kleinfeld accurately noted in

the present case, “Symbols endorsed or adopted by a government

are often ambiguous, but the words in this resolution are not

App. 16a-17a, 0.33

foundation of the Court’s jurisprudence’—in the

inferior federal courts can be directly attributed to the

insufficient and inconsistent guidance given to them

by this Court. See, e.g., ACLU v. Schundler, 168 F.3d

92, 113 (3d Cir. 1999) (dissent) (“Until the Supreme

Court decides a case in which a majority opinion of the

Court utilizes a clear test to analyze a religious

display, we are left with fact-specific inquiries that

focus on the size, shape, and inferential message

delivered by displays with religious elements, leaving

almost any display that has a religious symbol in it

open to challenge and any such display that has

secular elements, no matter how trivial, open to

judicial approval.”); Doe v. Duncanville Indep. Sch.

Dist., 994 F.2d 160, 166 n.7 (5th Cir. 1993) (“We have

eschewed the tripartite Lemon analysis in favor of a

more case-bound approach because we believe that a

fact-sensitive application of existing precedents is

more manageable and rewarding than an attempt to

reconcile the Supreme Court’s confusing and confused

Establishment Clause jurisprudence.”); Am. Jewish

Congress v. Chicago, 827 F.2d 120, 130 (7th Cir. 1987)

(Easterbrook, J., dissenting) (“It would be appalling to

conduct litigation under the Establishment Clause as

See McCreary Cnty. v. ACLU of Ky., 545 U.S. 844, 889 (2005)

(Scalia, J., dissenting) (“Nothing stands behind the Court’s

assertion that governmental affirmation of the society’s belief in

God is unconstitutional except the Court’s own say-so, citing as

support only the unsubstantiated say-so of earlier Courts going

back no further than the mid-20th century.”); see also Green v.

Haskell Cnty. Bd. of Comm'rs, 574 F.3d 1235, 1236 n.2 (10th Cir

2009) (Kelly, J., dissenting from denial of rehearing en banc) (“A

mode of analysis that ignores this tradition of acknowledgment,

and the original understanding of the Establishment Clause that

it suggests, is suspect at best.”)

1]

if it were a trademark case, with experts testifying

about whether one display is really like another, and

witnesses testifying they were offended—but would

have been less so were the créche five feet closer to the

jumbo candy cane.”); Bauchman v. West High Sch., 132

F.3d 542, 551 (10th Cir. 1997) (“To the extent the

Supreme Court has attempted to prescribe a general

analytic framework within which to. evaluate

Establishment Clause claims, its efforts have proven

ineffective.”); Green v. Haske!l Cnty. Bd. of Comm’rs,

574 F.3d 1235, 1245 (10th Cir. 2009) (Gorsuch, J.,

dissenting from denial of rehearing en banc) (“[UJntil

our superiors speak, we leave the state of the law “in

Establishment Clause purgatory.”) (quoting ACLU v.

Mercer Cnty., 432 F.3d 624, 636 (6th Cir. 2005)).

This case presents an opportunity for the Court to

revise its Establishment Clause jurisprudence in cases

involving government speech in the context of

reviewing for the first tume a case involving speech that

disfavors religion. See App. 20a (“We have not found

another Establishment Clause case brought by people

whose religion was directly condemned by their

government.”). Petitioners suggest that (a) in cases of

government speech that is rationally related to our

Nation’s long history and tradition of recognizing and

accommodating religion, such as those involving the

display of religious symbols during national holidays,°

© See Lynch v. Donnelly, 465 U.S. 668, 680 (1984) (“The créche in

the display depicts the historical origins of this traditional event

long recognized as a National Holiday.”).

Ten Commandments displays,’ the use of a cross in a

war memorial,” legislative prayer,’ or the use of words

such as “under God” in the pledge of allegiance or “In

God We Trust” in our national motto,’ the Court

should adopt a rational basis standard of review; and

(b) in cases that do not meet this’ threshold

requirement, such as those involving government

speech that expresses hostility toward religion as

illustrated by the anti-Catholic resolution at issue

here, a strict scrutiny standard should apply. See sec

I. B., infra. Such an approach is consistent with our

history and traditions and the construct of the First

Amendment. See, e.g., Lamb’s Chapel, 508 U.S. at 400

(Scalia, J., concurring in the judgment) (“What a

strange notion, that a Constitution which itself gives

‘religion in general’ preferential treatment (I refer to

the Free Exercise Clause) forbids endorsement of

’ Van Orden v. Perry, 545 U.S. 677, 688 (2005) (upholding the

display of a Ten Commandments monument on the grounds of the

Texas State Capital and acknowledging the history of such

displays)

* See, e.g., Salazar v. Buono, 130 S. Ct. 1803, 1817 (2010) (“It i

reasonable to interpret the congressional designation [of the cros

as a national war memorial] as giving recognition to the historical

meaning that the cross had attained.”)

~ Marsh v. Chambers, 463 U.S. 783, 786 (1983) (upholding the

constitutionality of legislative prayer and stating, “The opening of

sessions of legislative and other deliberative public bodies with

prayer is deeply embedded in the history and tradition of this

country”)

”’ See generally Elk Grove Unified Sch. Dist. v. Newdow, 542 U.£

1, 26, 35-36 (2004) (Rehnquist, C.J., concurring) (O’Connor, J

concurring) (acknowledging patriotic invocations of God and

official acknowledgment of religion’s role in our Nation’s history

ld

religion in general.”); McCreary Cnty., 545 U.S. at 88%

(Scalia, J., dissenting) (“Those who wrote the

Constitution believed that morality was essential to

the well-being of society and that encouragement of

religion was the best way to foster morality.”); Wallace

v. dJaffree, 472 U.S. 38, 92 (1985) (Rehnquist, J.,

dissenting) (“It is impossible to build sound

constitutional doctrine upon a mistaken understanding

of constitutional history, but unfortunately the

Establishment Clause has been expressly freighted

with Jefferson’s misleading metaphor for nearly 40

years.”); Marsh, 463 U.S. at 790 (“[H]istorical evidence

sheds light . . . on what the draftsmen intended the

Establishment Clause to mean.”); see also Green v

Haskell Cnty. Bd. of Comm’rs, 574 F.3d 1235 (10th Cir

2009) (Kelly, J., dissenting from denial of rehearing en

banc) (“The court’s decision in this case perpetuates a

regrettable misapprehension of the Establishment

Clause: that recognition of the role of religion in this

country’s founding, history, traditions, and laws is to

be strictly excluded from the civic sphere.”). And it

offers a well-established analytical framework within

which to evaluate Establishment Clause claims. This

framework would provide needed guidance for the

lower courts and would stem the tide of “silly” cases

and opinions.

A. THE COURT SHOULD ADOPT A

RATIONAL BASIS STANDARD OF

REVIEW FOR GOVERNMENT

“RELIGIOUS” SPEECH THAT IS

REASONABLY RELATED TO OUR

NATION’S HISTORY AND TRADITIONS.

“We are a religious people whose institutions

presuppose a Supreme Being.” Zorach v. Clauson, 343

en an unbroken history of official acknowledgm:

y all three branches of government of religion’s rol

American life.” Van Orden, 545 U.S. at 678 (quoti:

ynch, 465 U.S. at 674). Examples of this histor

icknowledgment include Executive Orders recogn

eligiously grounded National Holiday uch

hristmas and Thanksgiving, Congress directing

‘resident to proclaim a National Day of Prayer e:

ear, the printing on our currency of the natuio1

otto, “In God We Trust,” the display of the cre

ITing Christmas, see Lynch, 465 U itolo ,

1d representation of the ‘Ten Commandment

overnment property, Van Orden, 545 U:. al

UmMonyP ¢ yf he LS, SCE Gd iso h La rsh, 463 | {3.3 | uy yh }

pislative prayer); see alsoMcGowa Maryla

191} (196 holding §

istorical example without nnd tha

~storv pervaded by « rpresston oO] religu

liefs Equally pervasive is the evidence

iccommodation of all faiths and all form

religious expression, and Aostility toward n

Through this accommodation Just

louglas observed. government:

followed] the Desi

respected] the religi

i

‘ | {

a t i | ‘ 4 tail

{in our Nation’s heritage has also been reflected 1

ur decisions. We have acknowledged, for example

hat religion has been closely identified with o

history and government, and that the history of ma

inseparable from the history of religion.” Va

Irden, 545 U.S. at 687 (internal quotations, bracke

ind citations omitted); see also Elk Grove Unified Sci

Dist., 542 U.S. at 26 (Rehnquist, C.J., concurring 1

judgment) (“Examples of patriotic invocations of Gi

ind official acknowledgments of religion’s role in o

Nation’s history abound.”): td. at 35-36 (O’Connor,

oncurring in the judgment) (“It is unsurprising th:

i Nation founded by religious refugees and dedicat

» religious freedom should find references to divinity

nits symbol: , songs, mottoes and oaths.”): Lynch, 46

U.S. at 675 (Qur history is replete with officia

references to the value and invocation of Divine

ruidance a Van Orden 49 U.S ii ‘ele

‘[AJcknowledgments of the role played by the T'

yommandments in our Nation’s heritage are commo

throughout America.”). Governmental suppression ¢

this tradition 1s the antithesis of the value of religio

tolerance that underlies the Establishment Clau

e.g., Lamoé’s Chapel, 508 U.S. at 400 ¢

rin the judgn

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re a religious people with a long and rich religio

eritage, policy decisions that disfavor religion, suc

the resolution at

issue here, do not enjoy

avorable history and should, therefore, be

lifferently under the law. See Lynch, 465 US. at 67

tating that the Constitution “forbids hostility towa

ny religion) (internal punctuation, quotatior

ati, mitted OT nna Valal

a

). O32 (199 Lat hat

olfies DUrpO (il iT>I

Onal | tanda

piou peech Lnat t) \

lated te ur Nation histor ind traditi

ndard woul resp r Nation [

consistent with Line iramewe

endment i; | Vi ri] | provid a VW ¢

| fOr the | Wer court 1) apply Mores

move tron

tablishment Clause claim Olt

tification for the mrovernment hostilit

hgion. See Borden v. Sch. Dist. of ly. Brur

Md 153, 174 (3d Cir. 2008) (The Suprem

ted that comphance with the Kstablishme

1 state interest sufficiently compelling

itent-based restrictions on peech

otations and citation omitted): Stratec/i

87 F 3d 597. 604-06 (3d Cir. 2ZO09) Cu

in on the performance of traditional

cin public schools and finding that tl

gitimate secular purpose of avoidiu

tablishment Clause violation”): Robert

1 F.2d 1047, 1054 (10th Cir. 1990) (hol

1001 district s order directing a t he

Bible in sight read silently fi

} I

issroon l lar pury

tended u tL 1

POO! Ler /

tablishy

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county seal had a valid secular purpose of avoiding a

potential Establishment Clause violation); but see

Widmar v. Vincent, 454 U.S. 263, 270-71 (1981)

(holding that the state’s interest in complying with the

Establishment Clause did not justify discrimination

against a religious group)

On the other hand, government “religious” speech

that does not share the same history and tradition,

such as the anti-Catholic resolution presently before

this Court, should be treated under a higher standard

of review.

B. THE COURT SHOULD ADOPT A STRICT

SCRUTINY STANDARD OF REVIEW FOR

GOVERNMENT “RELIGIOUS” SPEECH

THAT IS NOT REASONABLY RELATED

TO OUR NATION’S HISTORY AND

TRADITIONS.

Government “religious” speech that is no

reasonably or rationally related to our Nation’s history

and tradition of recognizing and accommodating

religion should be subject to a heightened level of

scrutiny

For example, because the Constitution forbids

hostility toward a particular religion or of religion in

general—hostility that has no place in our Nation’s

history and traditions—such practices should be

judged under the Establishment Clause by applying a

strict scrutiny standard of review. See Lynch, 465 U.S.

at 673 (stating that the Constitution “affirmatively

mandates accommodation, not merely tolerance, of all

religions, and forbids hostility toward any”); see also

id. (observing that “such hostility «ould bring us into

18

war with our national traditions embodied in the First

Amendment|}”); Van Orden, 545 U.S. at 704 (Breyer,

J., concurring) (noting that “hostility toward religion

.. . has no place in our Establishment Clause

traditions”); cf. Church ofthe Lukumt Babalu Aye, Inc.,

508 U.S. at 520 (applying strict scrutiny to strike down

a law under the Free Exercise Clause that targeted a

particular religion). Thus, government speech that

explicitly disfavors religion, such as the resolution at

issue here, should be held “invalid unless it is justified

by a compelling interest and is narrowly tailored to

advance that interest.” Jd. at 533. Here, there is no

compelling interest—or indeed even a_ rational

basis—to justify the “insolent, stupid, or worse,” see

App. 37a, resolution expressly condemning Petitioners’

religion.

Similarly, strict scrutiny should apply to

government “religious” speech that favors religion in a

way that is inconsistent with our Nation’s history and

traditions. For example, a heightened level of scrutiny

should apply to a government resolution that officially

affirmed the Catholic doctrine of transubstantiation,

see, e.g., Larson v. Valente, 456 U.S. 228, 244 (1982)

(“The clearest command of the Establishment Clause

is that one religious denomination cannot be officially

preferred over another.”), or established the official

definition of “kosher” for the Jewish faith, see, e.g.,

Commack Self-Service Kosher Meats, Inc. v. Weiss, 294

F.3d 415, 425 (2d Cir. 2002) (holding that the

government violated the Establishment Clause

because it suggested a “preference for the views of one

branch of Judaism”). Taking an official position on a

specific theological proposition is qualitatively

different from government speech that is reasonably or

rationally related to our Nation’s history and tradition

of recognizing and accommodating society’s belief in

God.

It. THE EN BANC DECISION CONFLICTS WITH

DECISIONS FROM THIS COURT AND

OTHER CIRCUIT COURTS, AND IT

PRESENTS AN ISSUE OF NATIONAL

IMPORTANCE.

Should the Court decide not to substantially revise

its unworkable Establishment Clause jurisprudence,

Petitioners contend that the Court should summarily

reverse the en banc decision because it conflicts with

the controlling principles of law set forth in Church of

the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508

U.S. 520 (1993), Santa Fe Indep. Sch. Dist. v. Doe, 530

U.S. 290 (2000), Edwards v. Aguillard, 482 U.S. 578

(1987), and Epperson v. Arkansas, 393 U.S. 97 (1968),

among others, and it presents an issue of considerable

national importance.

A. THE ESTABLISHMENT CLAUSE SHOULD

NOT TOLERATE GOVERNMENT SPEECH

THAT EXPRESSLY DISFAVORS

RELIGION.

This Court has previously stated that when

evaluating claims under the Establishment Clause

“the Constitution also requires that we keep in mind

the myriad, subtle ways in which Establishment

Clause values can be eroded and that we guard against

other different, yet equally important, constitutional

injuries.” Santa Fe Indep. Sch. Dist., 530 U.S. at 314

(internal quotations and citation omitted). One such

way in which these “values” are eroded is by the

passage of a government resolution that singles out a

ZU

specific religion for disfavored treatment. An

evenhanded application of prior precedent should

compel a reversal in this case. Unfortunately, with

little exception, the application of this Court’s modern

Establishment Clause jurisprudence has led the law to

disfavor religion, thereby encouraging callous acts of

religious discrimination such as the challenged

resolution at issue here. Indeed, the en banc decision,

if left unchecked, will further embolden_ those

government officials who are anti-religious (or, worse,

anti-Cathohc). And it will add further confusion to the

Court’s already confused Establishment Clause

jurisprudence

In Lynch v. Donnelly, 465 U.S. 668 (1984),

Court stated:

It has never been thought either possible or

desirable to enforce a regime of total separation.

Nor does the Constitution require complete

separation of church and state; it affirmatively

mandates accommodation, not merely tolerance,

of all religions, and forbids hostility toward any.

Anything less would require the callous

indifference we have said was never intended by

the Establishment Clause. Indeed, we have

observed, such hostility would bring us into war

with our national tradition as embodied in the

First Amendment’s guaranty of the free exercis:

of religion.

Id. at 673 (internal punctuation, quotation:

citations omitted) (emphasis added)

In Church of the Lukumi Babalu Aye, Inc. v

Hialeah, 508 U.S. 520, 532 (1993), the

acknowledged the following: “In our Establishment

Clause cases we have often stated the principle that

the First Amendment forbids an official purpose to

disapprove of a particular religion or of religion in

general.” (emphasis added).

Despite an occasional appearance of neutrality and

suggestion that the Constitution is not hostile toward

religion, the reality is that this Court’s Establishment

Clause jurisprudence is frequently used as a blunt

instrument against all thing religious in public life.

While some on this Court still believe that our

Constitution “affirmatively mandates accommodation,

not merely tolerance, of all religions, and forbids

hostility toward any,” Lynch, 465 U.S. at 673, this case

will afford the Court the opportunity to breathe new

and lasting life into this fundamenta! principle of

constitutional law that is largely ignored by the lower

federal courts. As this case shows, the Court’s

prophetic observation in Lynch that “[a]nything less

would require the callous indifference [that] was never

intended by the Establishment Clause,” thereby

bringing “us into war with our national tradition” has

come to fruition. It is time to reverse this harmful and

divisive trend.

B. THE EN BANC DECISION DIRECTLY AND

SHARPLY CONFLICTS WITH

ESTABLISHED PRECEDENT AND

PROMOTES A PERCEPTION THAT THE

LAW IS HOSTILE TOWARD RELIGION.

Throughout its decisions, this Court has

consistently described the Establishment Clause as

forbidding not only state action motivated by a desire

to promote or “advance” religion, see, e.g., Cnty. of

Allegheny, 492 U.S. at 592, but also actions that tend

to “disapprove of,” “inhibit,” or evince “hostility”

toward religion, see Edwards, 482 U.S. at 585

(“disapprove”); Lynch, 465 U.S. at 673 (“hostility”);

Comm. for Pub. Educ. & Religious Liberty v. Nyquist,

413 US. 756, 788 (1973) (“inhibilt]”). The Court has

also noted that our Constitution prohibits government

action that “foster[s] a pervasive bias or hostility to

religion, which could undermine the very neutrality

the Establishment Clause requires.” Rosenberger v.

Rector & Visitors of Univ. of Va., 515 U.S. 819, 846

(1995); see Lynch, 465 U.S. at 668, 673 (stating that

the Constitution “forbids hostility toward any”

religion); see also Church of the Lukumi Babalu Aye,

Inc., 508 U.S. at 532 (stating that the Establishment

Clause “forbids an official purpose to disapprove of a

particular religion or of religion in general”).

A state-sponsored message of disapproval of

religion, as evidenced by Respondents’ anti-Catholic

resolution, sends a message to Petitioners and other

Catholics that their religion is disfavored in the

community. See Cnty. of Allegheny, 492 U.S. at 597.

The First Amendment mandates neutrality toward

religion and forbids hostility aimed at a particular

faith. Cf. Church of the Lukumi Babalu Aye, Inc., 508

U.S. at 520 (striking down a law that targeted a

particular religious practice).

More recently, in Van Orden v. Perry, 545 U.S. 677

(2005), a case in which a plurality of justices upheld

the 40-year display of the Ten Commandments on the

grounds of the Texas State Capitol, Justice Breyer, in

his concurring opinion, stated,

[The removal of the religious symbol], based

primarily upon the religious nature of the

tablets’ text would, I fear, lead the law to exhibit

a hostility toward religion that has no place in

our Establishment Clause traditions. Such a

holding might well encourage disputes

concerning the removal of longstanding

depictions of the Ten Commandments from

public buildings across the Nation. And it could

thereby create the very kind of religiously based

divisiveness that the Establishment Clause seeks

to avoid.

Id. at 704 (emphasis added)

While the language from these cases appears to

support a “disapproval of religion” claim, the practical

reality is that such claims are given little traction by

the lower courts, as this and other cases demonstrate.

See Stratechuk v. Bd. of Educ., 587 F.3d 597 (3d Cir.

2009) (upholding against an Establishment Clause

challenge a school district’s ban on the performance of

traditional Christmas music in its public schools

because the music is associated with a religious

holiday); Am. Family Ass’n v. City & Cnty. of San

Francisco, 277 F.3d 1114, 1124 (9th Cir. 2002) (holding

that San Francisco’s resolution condemning a religious

organization’s advertisement opposing homosexuality

did not violate the Establishment Clause); Vasquez v.

Los Angeles Cnty., 487 F.3d 1246 (9th Cir. 2007)

(upholding against an Establishment Clause challenge

the government’s removal of a small, historic cross

from the county seal because the cross was a religious

symbol); Vernon v. City of Los Angeles, 27 F.3d 1385,

1396 (9th Cir. 1994) (stating that “[t]he government

neutrality required under the Establishment Clause is

. violated as much by government disapproval of

religion as it is by government approval of religion,”

but finding no violation); O’Connor v. Washburn Unuv.,

416 F.3d 1216 (10th Cir. 2005) (upholding a

government display of an anti-Catholic statue against

an Establishment Clause challenge); cf Nurre ov.

Whitehead, 580 F.3d 1087 (9th Cir. 2009) (upholding

the ban of a student performance of “Ave Maria” at a

public school graduation). Compare Murray v. City of

Austin, 947 F.2d 147, 158 (5th Cir. 1991)

(acknowledging that removing Christian symbols, such

as a cross, from all public displays “evinces not

neutrality, but instead hostility, to religion” and

holding that the inclusion of a Christian cross in the

city insignia did not violate the Establishment Clause);

Doe v. Duncanville Indep. Sch. Dist., 70 F.3d 402, 407-

08 (5th Cir. 1995) (“Limiting the number of times a

religious piece of music can be sung is tantamount to

censorship and does not send students a message of

neutrality. ... Such animosity towards religion is not

required or condoned by the Constitution.”) (emphasis

added); see also ACLU v. Mercer Cnty., 432 F.3d 624,

638-39 (6th Cir. 2005) (upholding the public display of

the Ten Commandments and observing that the

“repeated reference to ‘the separation of church and

state” is an “extra-constitutional construct [that] has

grown tiresome”). At a minimum, there is much

confusion in the lower federal courts that only this

Court can clarify. Green, 574 F.3d at 1245 (Gorsuch,

J., dissenting from denial of rehearing en banc)

(“[U|ntil our superiors speak, we leave the state of the

law in Establishment Clause purgatory.”) (internal

quotations and citation omitted).

In the Ninth Circuit, and elsewhere, even the most

subtle and inconsequential act favorable to religion is

20

quickly held impermissible, see, e.g., Trunk, 2011 U.S.

App. LEXIS 53 (declaring the use of a cross in a

longstanding war memorial unconstitutional); Borden

v. Sch. Dist. of E. Brunswick, 523 F.3d 153 (3d Cir.

2008) (prohibiting a football coach’s participation in

student-led prayer by silently bowing his head during

grace and taking a knee during locker room prayer);

Busch v. Marple Newtown Sch. Dist., 567 F.3d 89 (3d

Cir. 2009) (refusing to allow a parent to read Bible

verses to her son’s kindergarten class during the

student’s “All About Me” week); see also Santa Fe

Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000) (allowing

an option for student-initiated and student-led prayer

at high school football games violated’ the

Establishment Clause), making hostility to religion the

standard to comport with the Establishment Clause.

This view of the Court’s jurisprudence inevitably leads

to a view of the law that is disapproving of religion.

Indeed, an official resolution that explicitly

condemns Catholics and their religion is not neutral

toward religion, but rather hostile to it. And even

subtle departures from neutrality are allegedly

prohibited by the Establishment Clause. See Church

ofthe Lukumi Babalu Aye, Inc., 508 U.S. at 534; Santa

Fe Indep. Sch. Dist., 530 U.S. at 314 (admonishing the

courts to “keep in mind the myriad, subtle ways in

which Establishment Clause values can be eroded” and

to “guard against other different, yet equally

important, constitutional injuries”); see also Sch. Dist.

of Abington Twp. v. Schempp, 374 U.S. 203, 306 (1963)

(concurring opinion) (noting that an “untutored

devotion to the concept of neutrality” can lead to

“hostility to the religious”). But these principles are

often cast aside in favor of an approach that employs

curettage and disinfectant for all that partakes of the

26

religious in public life—an approach wrought by thi:

Court’s muddled jurisprudence.

In the present case, the resolution violates the

Establishment Clause on its face because it expressly

and in explicit terms condemns Catholics and their

religion. See Santa Fe Indep. Sch. Dist., 530 U.S. at

314 (holding that “the mere passage by the District of

a policy” that has the “purpose and perception” of

favoring religion violates the Constitution) (emphasis

added). An examination of the _ resolution

demonstrates that the City’s departure from neutrality

was anything but “subtle”; it created the very kind of

political divisiveness along religious lines that the

Establishment Clause was apparently designed to

avoid.

Unfortunately, the Ninth Circuit’s en banc decision

represents an entrenched and improper double

standard for Establishment Clause cases that requires

only a minimal standard of proof for finding a

constitutional violation in “approval” cases and a very

high standard of proof for finding a constitutional

violation in “disapproval” cases. This case presents a

perfect opportunity to eliminate this double standard

in the lower federal courts by applying the

Establishment Clause in an evenhanded manner, as

required by this Court’s precedent.

In the final analysis, the en banc court’s decision

contravenes this Court’s case law _ prohibiting

government disapproval of religion and should be

summarily reversed. However, the lack of clarity from

this Court, particularly with regard to “disapproval”

claims, is undoubtedly a major contributing factor for

the fractured opinion below. Therefore, the Court

vident that Ctl

ts wit h several decisions from thi

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ther circuit courts so that consideration is

» secure and maintain uniformity of decisions 01

nportant issue of federal law, the crux of the pro}

that this Courts Establishment Cla

urisprudence is 1n need of substantial revision

ourt should prant review of this case and tak

pportunity to abandon the present Establishm«s

1use framework, which tends to be hostile tov

gion, in favor of a workable standard that

7

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Parts | and II of this opinion are joined by J1

THOMAS, SILVERMAN, CLIFTON, BYBEE,

[KUTA. Part IIT of this opinion, addressing the merit

if the plaintiffs’ claim, is a dissent, joined by Judg:

BYBEE and IKUTA. Five of us, including Chief Judg

KOZINSKI and Judges RYMER, HAWKINS, a:

McKEOWN, conclude that the plaintiffs have

standing, as set forth in Judge GRABER’s opini

Three of us, including Judges ,THOMAS an

CLIFTON, concur in the judgment, concluding tha

although the plaintiffs do have standing, their cla

fails on the _ merit:

| | VE R M A N

i. Facts’

We address whether Catholics and a Catholi

advocacy group in San Francisco may sue the City on

account of an official resolution denouncing their

church and doctrines of their religion. They may.

Pope Paul II] established the Congregation for the

Doctrine of the Faith a half millennium ago.’ It

safeguards and promotes Catholic doctrine on faith

and morals. In 2003, the Congregation addressed

homosexual marriage and adoption, concluding that

both were immoral, and that it was the moral duty of

Catholics to oppose both. To carry out this doctrinal

decision, Cardinal William Joseph Levada directed the

Archdiocese of San Francisco that Catholic agencies

should not place children for adoption in homosexual!

households

San Francisco immediately responded with official

hostility. The San Francisco Board of Supervisors

adopted the resolution giving rise to this lawsuit. The

resolution urges the Cardinal to withdraw his

instructions; denounces the Cardinal’s directive as

“meddl[ing]” by a “foreign country”; calls it “hateful,”

“insulting,” and “callous”; and urges the _ local

archbishop and Catholic Charities to “defy” the

' Because the complaint was dismissed under Federal Rule of

Civil Procedure 12(b)(6) for failure to state a claim on which relief

could be granted, we take the factual allegations from the

complaint to determine whether, if proved, they would establish

a claim. Sacks uv. Office of Foreign Assets Control, 466 F.3d 764,

771 (9th Cir. 2006). We therefore state the facts as pleaded

1542, 468 years ag

Cardinal!

full

Resolution urging Cardinal William

Levada, in his capacity as head of the

Congregation for the Doctrine of the Faith

at the Vatican, to withdraw his

discriminatory and defamatory directive

that Catholic Charities of the Archdiocese

of San Francisco stop placing children in

need of adoption with homosexual

households.

WHEREAS, It is an insult to all Sa

Franciscans when a foreign country, like

the Vatican, meddles with and attempt:

to negatively influence this great City’s

existing and established customs and

traditions such as the right of same-sex

couples to adopt and care for children

need: and

WHEREAS, The statements of Cardina

Levada and the Vatican that “Catholi

agencies should not place children for

adoption in homosexual households,” and

“Allowing children to be adopted by

persons living in such unions would

actually mean doing violence to these

children” are absolutely unacceptable t

the citizenry of San Francisco; and

WHEREAS, Such hateful al

discriminatory rhetoric is both insulting

and callous, and shows a level of

insensitivity and ignorance which h

ecidedly

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Plaintiffs sued the City, claiming that this official

government resolution violates the Establishment

Clause. The district court dismissed their lawsuit for

failure to state a claim upon which relief could be

eranted, and we initially affirmed.* We then voted to

rehear the case en banc, and now affirm the district

court’s dismissal on differing grounds

Standing

lhe complaint alleges that plaintiffs are a Catholi

civil rights organization and two devout Catholics who

live in San Francisco. They aver that the resolution

conveys a government message of disapproval and

hostility toward their religious beliefs. It “sends a clear

message,” they plead, “that they are outsiders, not full

members of the political community.” They allege that

they have been injured by “misuse of the instruments

of government to criticize, demean and attack their

religion and religious beliefs, thereby chilling their

access to the government.” The individual! plaintiffs

aver that they “will curtail their activities to lessen

their contact” with the city and county government

and the two members of the Board of Supervisors sued

because of the resolution

After raising the question of standing sua sponte

we asked the parties for letter briefs addressing it. The

City and County conceded standing, arguing that “the

individual plaintiffs have successfully pleaded

standing, having alleged that they are members of thi

‘Catholic League for Religious and Civil Rights v.

567 F.3d 595 (9th Cir. 2009), reh’g en bane

(9th Cir. 2009)

mmmunity who have had contact with the resolutio:

and have suffered spiritual harm as a result.” Wer

the result otherwise, the municipality concedes,

resolution declaring Catholicism to be the official

religion of the municipality would be effectively,

unchallengeable. The municipality also concedes th

the Catholic League has “associational standing.”

At bottom, ‘the gist of the question of standing

whether petitioners have ‘such a personal stake in tl

utcome of the controversy as to assure that concrete

si seness which sharpens the presentation of issues

upon erent the court so largely depends for

Ulumination.’” Had a Protestant in Pasadena brought

this suit, he would not have had standing. Catholics in

San Francisco, on the other hand, have sufficient

interest, so that well-established standing doctrins

entitles them to litigate whether an anti-Catholi

resolution violates the Establishment Clause

Standing, or the lack of it, may be intertwined witl

whether the complaint states a claim upon which relief

can be granted, but it is not the same thing.® Standing

is not about who wins the lawsuit; it is about who is

allowed to have their case heard in court. It would be

outrageous if the government of San Francisco could

condemn the religion of its Catholic citizens, yet those

citizens could not defend themselves in court against

the ir covernment s prefern nent of othe r religious view

Nevertheless, some of us have dissented on

standing, so we address the issue. The standing

question, in plain English, is whether adherents to a

religion have standing to challenge an official

condemnation by their government of their religious

views, and official urging by their government that

their local religious representative defy their church.

Their “personal stake” assures the “concrete

adverseness’ required. “Endorsement sends a message

to nonadherents that they are outsiders, not full

members of the political community, and an

accompanying message to adherents that they are

insiders, favored members of the political community.

Disapproval sends the opposite message.”’ Plaintiffs

aver that not only does the resolution make them feel

like second-class citizens, but that their participation

in the political community will be chilled by the City’s

hostility to their church and their religion.

[1] The constitutional requirement of standing has

three elements: (1) the plaintiff must have suffered an

injury-in-fact — that is, a concrete and particularized

invasion of a legally protected interest that is actual or

imminent, not conjectural or hypothetical; (2) the

injury must be causally connected — that is, fairly

traceable — to the challenged action of the defendant

and not the result of the independent action of a third

party not before the court; and (3) it must be likely and

|

not merely speculative that the injury will bs

Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O’Connor, .

concurring); see also Cnty. of Allegheny v. ACLU, 492 U.S. 5

595 (1989) (adopting Justice O’Connor’s rationale in Lynch

redressed by a favorable decision by the court.° “The

concept of a ‘concrete’ injury is particularly elusive in

the Establishment Clause context . . . because the

Establishment Clause is primarily aimed at protecting

non-economic interests of a spiritual, as opposed to a

physical or pecuniary, nature.”

[t is, of course, incumbent upon the courts to apply

standing doctrine neutrally, so that it does not become

a vehicle for allowing claims by favored litigants and

disallowing disfavored claimants from even getting

their claims considered. Without neutrality, the courts

themselves can become accessories to unconstitutional

endorsement or disparagement. Standing is

emphatically not a doctrine for shutting the

courthouse door to those whose causes we do not like.

Nor can standing analysis, which prevents a claim

from being adjudicated for lack of jurisdiction, be used

to disguise merits analysis, which determines whether

a claim is one for which relief can be granted

factually true.

[2] Standing was adequate for jurisdiction

Kstablishment Clause cases in the Supreme Court i1

the following contexts: prayer at a football game,”

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 :

Valley Forge Christian Coll. v. Ams. United for Separation

Church and State, Inc., 454 U.S. 464, 475-76 (1982)

reche in a county courthouse Or PuUDLIC parK,

Ten C mmandments displayed on the grounds

state capitol’® - ata courthouse, ‘a cross display at

national park,” school prayer,’® a moment of silence a

school,’’ Bible reading at public school,’® and

religious invocation at a graduation.” No one w:

made to pray, or to pray in someone else’s church, or t

support someone else’s church, or limited in how they

prayed on their own, or made to worship, or prohibited

from worshiping, in any of these cases. The Court

treated standing (and therefore the concretenes

element of standing) as sufficient in all of these cas

even though nothing was affected but the religi

irreligious sentiments of the plaintiffs

idge Graber S argument appears to De tnat

ot involve a challenge to a religious display on governmer

property, a religious exercise at a public ceremony, or a “specifi

governmental policy or statutory provision,” there is no standinj

ire is not a single standing case that limits Establishme

[3] We have concluded that standin;

iblished in cases involving displaying cro

lause standing to these three categories. Most of the case

into them because American governments have typically bee:

sympathetic to religion rather than hostile to it. Establishment

Clause challenges, because of this typical governmental sympathy

for religion, tend to challenge governmental endorsement. The

Supreme Court, though, has carefully linked rejection of

endorsements to rejection of condemnations in virtually every

discussion of the subject. See, e.g., Church of the Lukumi Babalu

Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532 (1992) (“[T)he First

Amendment forbids an official purpose to disapprove of

particular religion .. . .”). Moreover, an official resolution of the

City of San Francisco is indeed a “case[ } involving a specifi«

governmental policy,” condemning, in this case, the Catholi

Church. The distinction Judge Graber draws between

governmental display and a government’s official resolution cut

against her view. A symbol such as a créche on the city hall lawr

is ambiguous. It may mean that the government endorse:

Christianity, or it may mean that the government merely wishe:

to show respect and friendship for Christianity. The resolution at

issue, like a symbol, conveys a message, but unlike a symbol, thi

message is unambiguous. Judge Graber’s opinion would ignors

San Francisco’s plain denunciation of the Catholic Church becauss«

it is unaccompanied by symbolic public art. The opinion alss

ignores binding Supreme Court precedent on government speech

“The Free Speech Clause restncts government regulation ot

private speech; it does not regulate government speech Thi

does not mean that there are no restraints on government speech

For example, government speech must comport with the

Estabhshment Clause.” Pleasant Grove City v. Summum, 129 §

t. 1125, 1131-32 (2009)

u InP All ¢

ed not be patiently explicated is that

raber’s cited cases involves a government

articular church or religion. The attempt to tease ou

hetoric explaining the holdings in other, quite different, fact

ircumstances fails because the language in every case explai

different result. True

there are so many Establishment Cla

unding cases that the language (as opposed to the holding

yme furnishes ammunition for Judge Graber

eFevre upholds standing to challenge federal statutes requir

n God We Trust” on currency, but not the federal statute mak

n God We Trust’ the

s view. Newd

national motto. 598 F.3d 638, 642 (9th ‘¢

Vi Candin:

es retain thei VI

} i

1i0n would be

>i

ject standing for

i

Oth Cir

regarding traditie

itriotic formulas that in reneral religiosity

cal ordinance condemning the church and religious viev

yme of the municipality

dent takes the explanat

inguage of these cases too far. Additionally, Judge Graber a

at a one-page Eighth Circuit per curiam opinion, Flora v. Vi

692 F.2d 53 (8th Cir. 198

‘Indistinguishable’” from this ca

Hardly. The BKighth Circuit held

rovision in the Arkar

e of holding public offic

had n@ pi

}

‘

er curiam) that the plaintif

cked standing to challenge

nstitution making atheists incay

where the plaintiff

cing offended because they were :

testify as a witness, in

ther. /d. at 54. Their |

is analopized to the plaintiffs offended but not affected in Va:

United for Separati

tthe

rye Christian College v. American

hur h and State , 454 { 164 (1982) See Flor

ilike either of these « the plaintiff here

1)

consequence” does not suffice as concrete harm wher:

it is produced merely by “observation of conduct with

which one disagrees.” But it does constitute concrete

harm where the “psychological consequence” is

produced by government condemnation of one’s own

religion or endorsement of another’s in one’s own

community. For example, in the school prayer and

football game cases, nothing bad happened to the

students except a psychological feeling of being

excluded. Likewise in the creche and Ten

Commandments cases, nothing happened to the non

Christians, or to people who disagreed with the Ten

Commandments or their religious basis, except

psychological consequences. What distinguishes the

cases is that in Valley Forge, the psychological

consequence was merely disagreement with the

government, but in the others, for which the Court

identified a_ sufficiently concrete injury, the

psychological consequence was exclusion 01

denigration on a religious basis within the political

community.””

' Judge Graber argues that standing is appropriate in t

religious display cases, but not this case of condemnation of a

religion, because those who challenge a religious display have

frequent or regular contact with it and are harmed because they

cannot freely use public areas. This distinction cuts the other way,

however, as explained above. Living 1u a city that condemns one’s

religion is a daily experience of contact with a government that

officially condemns one’s religion. A plaintiffs having visual

contact with a cross is immaterial, and would not raise a question

if it were merely in a painting in the city art museum, because a

reasonable person would not infer a government’s position on a

religion from the painting. The “contact” that matters is in the

mind — acquisition of the knowledge that the government

endorses (or condemns) a religion. An official government

condemnation of a religion unambiguously and inescapably

[5] Plaintiffs allege that they are directly

stigmatized by San Francisco’s actions. They allege

that the stigmatizing resolution leaves them feeling

like second-class citizens of the San Francisco politica

community, and expresses to the citizenry of San

Francisco that they are. The cause of the plaintiffs’

injury here is not speculative: it is the resolution itself

Plaintiffs allege that their “Sacred Scripture” “presents

homosexual acts as acts of grave depravity,” and that

“Catholic tradition has always declared _ that

homosexual acts are intrinsically § disordered.’

Plaintiffs believe as part of their religion that

4

“Catholics have an obligation to state clearly tl

conveys knowledge of that condemnation. Judge Graber’s notio1

that the public display cases involve restriction on movement

relies on a false factual proposition. In none of the religious

display cases is there any law prohibiting free use of public areas

by those who are not adherents to the religion. The nonadherents

simply feel uncomfortable in the presence of a display endorsing

someone else’s religion. There is no principled basis for

assiduously addressing that discomfort, yet treating as trivial the

discomfort of those whose religion is condemned by their

government. The plaintiffs are as affected by what the San

Francisco government has done — condemning their religion — a:

an atheist would be if the San Francisco government erected a

giant cross on top of its biggest hill, on which he happened to hive

and which he would be walking past on the way to work. Thx

government cannot constitutionally endorse a religion by erecting

the cross; nor, analogously, can it condemn religion by erecting a

gigantic sign on city hall of a cross with a line through it: a “no

Christianity” sign with the design of a “no smoking” sign. The

Board’s resolution accomplishes the same thing as _ the

aforementioned sign, but even more plainly and unambiguously

Symbols endorsed or adopted by a government are often

ambiguous, but the words in this resolution are not

Consequently, this is an easier and more direct case for standing

than any of the religious-symbolism cases cited by Judge Graber

LSa

immoral nature of homosexual unions so as to

safeguard public morality, and above all, to avoid

exposing young people to erroneous ideas about

sexuality and marriage. Clear and emphatic opposition

to homosexual unions is a duty of all Catholics.” San

Francisco directly disparages these religious beliefs

through its resolution by calling them “hateful and

discriminatory,” “insulting and callous,” and

“insensitivle] and ignoran|[t].”

[6] The concreteness of injury is_ sufficiently

pleaded here because plaintiffs aver that: (1) they live

in San Francisco; (2) they are Catholics; (3) they have

come in contact with the resolution; (4) the resolution

conveys a government message of disapproval and

hostility toward their religious beliefs; that (5) “sends

a clear message” “that they are outsiders, not full

members of the political community”; (6) “thereby

chilling their access to the government’; and (7) forcing

them to curtail their political activities to lessen their

contact with defendants.

[7] Standing also requires redressability, that is,

that it is “likely, as opposed to merely speculative, that

the injury will be redressed by a favorable decision.”**

Plaintiffs seek a declaratory judgment that the

resolution is unconstitutional, and nominal damages

for the violation of their rights. By declaring the

resolution unconstitutional, the official act of the

government becomes null and void.” Even more

‘Lujan v. Defenders of Wildlife

quotation marks oraitted)

See, e.g., Powell v. McCormack, 395 U.S. 486, 506 (1969)

“Especially is it competent and proper for this court to consider

important, a declaratory judgment would comn

to the people of the plaintiffs’ community that tl

government is_ constitutionally prohibited fr

condemning the plaintiffs’ religion, and that any

condemnation is itself to be condemned. Th

reaffirm the fundamental principle t}

itihe basic purpose of the religion clause

First Amendment is to promote and assure th

fullest possible scope of religious libert

y

tolerance for all and to nurture the conditio1

+} +}

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which secure the best hope of attainment of

’

fullest realizati

berty requires that government

nor compel religious practices, that

o favoritism among sects or between

nd nonreligion, and tha

is.

vhether its (the legislature’s) procee:

the Constitution and laws, because, living under a writt

constitution, no branch or department of the government

supreme; and it is the province and duty of the judic:

department to determine tn cases regularly brought before then

whether the powers of any branch of the government, and eve

those of the legislature in the enactment of laws, have bi

exercised in conformity to the Constitution; and if they have n

to treat their acts as null and void.’ ” (quoting “language wt

time has not dimmed” from Kilb ]

199 (1880))

-OnCcuUrring

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le MStaplisnme VIODMUILS POVECTIIE

n making adherence to a religion relevant in an)

standing the political

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persons in

community.” Government

Establishment Clause through

lisapproval of religion. Endorsement sends a messagi

a

Luis

o nonadherents that they are outsiders, not

community, and

runs afoul of

“endorsement

Way to a

(

Ale

members of the political

iccompanying message to adherents that they

insiders, favored members of the political community

”“* Plaintifi

Disapproval sends the opposite mes sage.

complain here of just h areeenaaald

isparagement * +]

101 1 another Establisl Clar

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19 VE '

ACA V4 aa

Ve lL LU

ise brought by people whose religion was directly

yndemned by their government. Though there have

Mormons and Jehovah’s

been lapses, as_ with

Witnesses, tradition even more than law has generall

‘estrained our national, state, and local government:

from expressing condemnation or disrespect fo

anyone's religion. George Washington set the tone fo:

ur governmental relationship to religion even befor

— 17!

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+

, rPrEirgeo

itt

a

Kirst Amendment

ncurring); s

1989)

pression of gooawil!

Newport, Rhode Isla:

All possess alike liberty nsciel

mmunities of citizenship. It is now no m«

that toleration is spoken of, as if it was by tl

indulgence of one class of people, that anoths

enjoyed the exercise of their inherent natura

rights. For happily the government of th

United States, which bigotry 1

sanction, to persecution no assistance, require

only that they who live under its protectio1

gives to

hould demean themselves as good citizens,

riving if | occasions their effect

upport

Ion on government nostill

ne only recent Court dec!

)a particular religion that we have found is the fre

xercise decision of Church of the Lukumti Babalu Ay.

Inc. v. City of Hialeah, where the Court notes that it

Establishment Clause cases “have often stated th:

principle that the First Amendment forbids an officia

purpose to disapprove of a particular religion or

religion in general.”*” That case, along with man}

other opinions of the Court, stands for the principle

has no legitimate role under the

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hat government

rent Cla ] Nlidging

r)

yf the people — either by praise or denunciation.” ']

principle requires that we nullify San Francisco

sovernmental condemnation of Catholic doctrine

Though much criticize oo Lemon v. Kurt

remains controlling on Establishment Clauss

violations. subject to subsequent emendation

wee, €.2., Lynch, 465 US. at 673 (“Nor does the Constitutio

require complete separation of church and state; it affirmative

mandates accommodation, not merely tolerance, of all re heiom

nd forbids hostility toward any.” (emphasis added

, Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grume

S.6 87, 720 (1994) (O’Connor, J., concurring) (warning that

“the bad test may drive out the good. Rather than taking the

opportunity to derive narrower, more precise tests from the case

law, courts tend to continually try to patch up the broad test,

making it more and more amorphous and distorted. This, I an

afraid, has happened with Lemon”); Lamb’s Chapel v. Ctr

Moriches Union Free Sch. Dist., 508 U.S. 384, 399 (1993) (Scalia

J., concurring) (lamenting that “[llike some ghoul in a late-night

horror movie that repeatedly sits up in its grave and shuffles

abroad, after being repeatedly killed and buried, Lemon stalks ou

Establishment Clause jurisprudence once again, frightening the

little children and school attorneys. ...” And detailing how “fo]vez

the years... no fewer than five of the [then] sitting Justices have

in their own opinions, personally driven pencils through the

creature’s heart (the author of today’s opinion repeatedly), and :

sixth has joined an opinion doing so”); Crty. of Allegheny v. ACLI

492 U.S. 573,669 (1989) (Kennedy, concurring in part) (expressing

his view “that the endorsement test is flawed in its fundamental:

ans unworkable in practice”); Comm. for Pub. Ed. v. Regan, 444

S. 646, 671 (1980) (Stevens, J. dissenting) (explaining that th

Coat should abandon “the sisyphean task of trying to Pat

toge the r thet yurred, indistinct, and variable barrier’ described

7210n

endorsement” and “neutrality” principles hav

developed.** Under Lemon, government action must

have a secular purpose, “its principal or primary effect

must be one that neither advances nor inhibits

religion,” and it “must not foste1 KCESSIN

entanglement with religion.”

The municipality argues that its purpose was not

condemn Catholicism, but rather to foster equa

treatment of people who are gay and lesbian. That 1:

indeed a legitimate purpose, but we would not have

this case before us if that were all that the resolutio1

said. The San Francisco government would face no

colorable Establishment Clause challenge had they

limited their resolution to its fourth “whereas,” that

“[s]Jame sex couples are just as qualified to be parents

as heterosexual couples.” San Francisco is entitled to

take that position and express it even though Catholics

may disagree as a matter of religious faith. But the

title paragraph, the other five “whereas” clauses, and

the “resolved” language are all about the Cathol

Church, not same-sex couple

The municipality argues that any reasonal

recipient of its message would also be familiar with 11

forty-one other resolutions condemning discriminatio1

os ~ } |

izainst homosexuals and anti-homosexual speech

See Lamb’s Chapel, 508 U.S. at 395 n tating, in responst

Justice Scalia’s assertion that Lemon was a “ghoul in a late-night

horror movie,” that “there is a proper way to inter an established

decision and Lemon, however frightening it might bs |

1t been overruled”

7" .a4

te) | Th.

Russia, Germany,” Florida,” Alabama,” by a senat

from another state,” by various celebrities,”'and by

football team.** The municipality claims that thes

show that its concern is homosexuals, not Catholicism

and that any inference of anti-Catholicism is decisively

rebutted because anyone would know that the

councilman who introduced the resolution is Catholic

The argument seems bizarre. Why would anyone know

the personal religious faith of each city councilman? O1

be familiar with all the resolutions of their municipal!

government, not just the one attacking their church?

moti

And why should the underlying seculaz

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inferable from other government actions cure al

expressed anti-Catholic purpose in the action

challenged? Regardless of what the underlying

motivation may be for the various individuals on the

city council, a court must, in deciding whether a

government action violates the Establishment Clause,

read the words of the government enactment.” If the

zoning board prohibited all synagogues and mosques

from operating within the city limits, the action would

not be saved even by a legislative history that

persuasively demonstrated a secular motive of

avoiding strife between Jews and Muslims. “[O]fficial

objective emerges from readily discoverable fact

Judge Silverman suggests that the resolution should be read in

the context of San Francisco’s history of promoting gay rights and

supporting the rights of same-sex couples. A strong city policy of

favoring gay rights, though, does not justify official attacks on

religion. The San Francisco government used the group version of

an ad hominem argument. Instead of a resolution simply favoring

same-sex adoption and criticizing the arguments against it, the

resolution attacked the religion of those against it. A secular

motive for smearing anti-Catholic graffiti on a cathedral would

not erase the anti-Catholic message conveyed. The Board of

Supervisors went out of its way to characterize Catholicism as

coming from a “foreign country[:}] the Vatican,” its teachings as

“hateful,” and implicitly compared modern-day Catholic officials

to the Inquisition. These are traditional anti-Catholic tropes

employed for centuries by anti-Catholic bigots. See, e.g., Thomas

E. Watson, Rome’s Law, Or Our’s Which?, The Jeffersonian,

Sept. 7, 1916, at 4 (using the same rhetorical! device as the Board

of Supervisors, Tom Watson, the Populist supporter of the Ku

Klux Klan, characterized Catholic religious convictions as “laws

of [a] foreigner [that] are absolutely antagonistic to ours. . . . Ths

Pope’s is the only church that is foreign; the only church whose

laws antagonize democracy and republican institutions... ; the

only church whose theology teaches murder, and whose literatur«

;so obscene that she savagely prosecutes [those] who expose it’

ithout any judicial psychoanalysis of a drafte

fhearts.”” “[T]he absence of a malevolent motive dos

not convert a facially discriminatory policy int

.eutral policy with a discriminatory effect

[he resolution also must satisfy the second pro

the Lemon test, that its “principal or primary effect

must be one that neither advances nor inhibit:

religion... .”° Here, the argument seems to be that

the resolution has no effect at all, let alone a “principa

or primary one, because it is merely an ineffectua

expression of the Board of Supervisors’ sentiment ans

not a compulsory regulation of behavior. Tha

argument cannot stand because of the extensiv:

Establishment Clause jurisprudence

government, arguably with similar ineffectualil

endorses religion, and the mere endors«

leemed unconstitutional

d Aut )

A 4A - 4 ;

Vorke , 4 Johnson riir

ee, Cz. Mc reary Cnty , 045 (JS. at 844 (dy

Commandments); Santa Fe Indep. Sch. Dist. v. Doe, 530 U.:

2000) (prayer before football game); Lee v. Weisman, 505 U

1992) (religious invocation at school graduation); C

Allegheny v. ACLU, 492 U.S. 573 (1989) (créche display

courthouse); Wallace v. Jaffree, 472 U.S. 38 (1985) (moment

silence or voluntary prayer at school); Sch. Dist. of Abington Tw;

Schempp, 374 U.S. 203 (1963) (Bible reading at school); Eng

Vitale, 370 U.S. 421 (1962) ( (prayer at school); Buono v. Nortor

11 F.3d 543 (9th Cir. 2004) (cross on age land); |

rut’

Separati »/

& State Comm. v. City of Eugene, 93 F.3d 61

ele)

at ‘ }

established principle that the governm: nu

neutrality towa1

pursue a course of complete

eligion.””’ The “[Establishment] Clause, at

east, prohibits government from appearing to take

the vel

fron

sition on questions of religious belief o

} ‘ . : :

community

making adherence to a religion relevant in any way

lita he

person's standing in the po

.% a rroicrref?t r<¢ n mi :

Wlause MILNL areuadDly i!

‘he Establishment

een limited, long ago, to prohibiting something |

he Church of England, where taxes support thi

appoints

ne

government ts head, t!

hurch and the

Archbishop of Canterbury. Or the clause might hav

been limited to laws imposing fines for failure |

ittend church at proper times.” But it has not been :

imited. The Establishment Clause as it has develops

eovernment action that is n

may be violated even by

nore than expression of a sentiment, as by displays

‘eligious symbols on government property. None

anyone to do anything

these violations compel

‘efrain from anything, but they : the usual subje

Eictablishmse nt *& 11} a } 1 4.2 . os

&

ie LALLA 4 ‘ 4 P|

arrand ed., 1929) (1648) (requiring church attendance «

Lords days” and any other days “as are to be generally kept

itie,” with anyone who violated this |

the appointment of Auth«

being required to “forfei

if ves

1Sapprov al.

ndorsement

t “Catholic doctrine is wro!

—

40)

the Establishment Clauss

regal

nowledge

Baare

in Indone

official re

aintliis iW ( Cause duily-electea governme

ficials have the right to speak out in their offici

capacities on matters of secular concern

‘constituents, even if their statements offend th.

religious feelings of some of their other constituent

[he key here is that the resolution in question had

rimanly secular purpose and effect and addres

af nee}

ablshment Clause’s neutrality-only requirems

when it: (1) has a predominantly religious purpose; |

as a principal or primary effect of

nhibiting religion; « 3 fosters excessi'

>

Lemon v. Kurtzman, 40

¥

ripartite Lemon test to governmental expressions

illeged religious hostility. See Am. Family Ass’n v. (

|

(

Vy

ounty of S.F., 277 F.3d 1114, 1121 (9th Cir. 2002

also Vernon v. City of L.A., 27 F.3d 1385, 1396 (9tl

1994). The resoluti itisf

regulated

io not necess

‘remonies and traditions. The same-sex marriag

bate surely has religious significance to many, but i

also a hot-button political issue of considerabl

interest to the defendants’ constituents

defendants passed their March

direct response and contemporaneo'

yardinal Levada’s March 2006 directive. The

re f¢ rs explicitly LO + ta

y

(atn

.

Its stated purpose 1st

directive

use hol ls i

Willi: im | lade to withdraw [t]his

The reasons given are purely secular, not theologica

ylutron contains nothing like, “T!

ry -_

( Das? Road bala

Forexample, ther

Church has misread the Bible,” or

f same-sex Marriage.”

| agree with the district court that under Ls

irst prong (the purpose prong), an “objective observ:

who is “presumed to be familiar with the history of tl

yovernment’s actions and competent to learn wha

T trys

-7

|

show” would conclude that

history has _ to

predominantly secul

lefendants acted with a

purpose, i.e., to promote equal rights for same-s

‘ouples in adoption and to place the greatest numb:

yf children possible with qualified families. Moreove:

San Francisco has a well-known and lengthy history

promoting gay rights. See Catholic League v. Cit

‘ounty of S.F., 464 F. Supp. 2d 938, 946 &

udicial notice of other San Francisco

rights of same-sex cou

consider the resolutio

romoting the les

le observer would

he context of both this history and

unabashed efforts to frustrate same-s«

the defendants’ polit

"

reasonab

the Cathol

‘-hurch’s

adoption in San Francisco,

ailiwick. In hght of this context, such an obser

would conclude that 7D

‘esolutior

) reasonable observer familiar with

istory of the government practice at issue here wt

ynclude that the primary effect of the resolution

\

A

promote same-sex adoption. See

YT?

imary message is that “same x couples are j

yualified to be parents as are heterosexual couple

and that placing children in homosexua! household

does not do violence to them. An objectively reasonable

ybserver would conclude, as they would in the context

of the purpose prong, that both San Francisco’s histor

f promoting gay rights and the timing of tl

lefendants’ resolution, incendiary though it may be

umed at expressing the defendants’ posit

ilar issue of same-sex adopti

a na ‘ : a

tanglement prong), this resolution does

‘xcessively entangle the defendants with religion

vas an isolated, non-binding expression of the Boar

f Supervisors opinion on a secular matter, which t

plaintiffs have not alleged even potentially interferes

with the inner workings of the Catholic Church. Th

type of one-off entreaty does not violate Lemon’s thir

prong; “laldministrative entanglement typical

nvolves comprehensive, discriminating, a

ontinuing surveillance of religion.” Vernon, 27 F 3d i

1399. To like effect is Nurre v. Whitehead, 580

1087 (9th Cir. 2009), holding that a school distric

single request that a student not play “Ave Maria”

* a . .— . = mito > |}

oraduation, because of mul ipie compiaintS a

‘eligiouS muSIk a t

tanglem

AM e€TitCcal#r. (alii 7 PiIcivuded id 1

Supervisors did not violate the Est: iblishme

lause by passing resolutions similar to hone at issi

ere. The resolutions in American Family criticized

religious political coalition for its wc position

, ¢ +, nda valk ork

)

omosexuallty assailed ne scientilic and socioi

+

television stations not to support the coalition

message of intolerance. See Am. Family, 277 F.3d at

1119-20. One of the coalition’s ads, placed in the San

Francisco Chronicle, proclaimed that “God abhors any

form of sexual sin,” including homosexuality. /d. at

1119. The Board passed the resolutions in response 1

that ad, and others. /d. at 1119-20

The plaintiffs would have us distinguish thi

resolution in this case from the one in American

Family on the grounds that the Board directed this

resolution toward a religious entity rather than a

political one. But the mere fact that a resolution calls

out a church or a clergyman cannot carry the day

Otherwise, the Establishment Clause would gag

secular officials from responding to religious entities

even when those entities have chosen to enter th

secular fray

We would have a different case on our hands hax

the defendants called upon Cardinal Levada to recant

his views on transubstantiation, or had urged

Orthodox Jews to abandon the laws of kashrut, o1

Mormons their taboo of alcohol. Those matters ot!

religious dogma are not within the secular arena in th:

way that same-sex marriage and adoption are. The

speech here concerns a controversial public issue that

affects the civic lives of the citizens of San Francisco

religious and nonreligious alike. [ would not constru:

the First Amendment to prohibit elected officials fron

speaking out, in their official capacities, on matters of

such clearly civil import, even if their speech

insolent, stupid, or worse. A church has every right t

take a firm moral position on secular issues, but it ha:

10 right to prevent public officials from criticizing

position on those secular issues — especially when o1

of its clergy fires the first salvo

l would affirm

GRABER, Circuit Judge, joined by KOZINSKI, Chief

Judge, and RYMER, HAWKINS, and McKEOWN,

Circuit Judges, dissenting on the issue of jurisdiction

but concurring in the judgment:

Plaintiffs Catholic League for Religious and Civil

Rights (“Catholic League”), Dr. Richard Sonnenshein,

and Valerie Meehan brought this 42 U.S.C. § 1983

action against Defendants City and County of San

Francisco, San Francisco Board of Supervisors

President Aaron Peskin, and Supervisor Tom

Ammiano, challenging their enactment of Resolution

of March 21, 2006, No. 168-06. Plaintiffs argue that

the resolution violates the Establishment Clause of the

First Amendment by impermissibly attacking

Plaintiffs’ religion, Catholicism. The _ resolution

concerns a Catholic cardinal and his directive to

Catholic Charities CYO of San Francisco (“Catholic

Charities”), a non-profit provider of social services, on

the topic of adoption by same-sex couples. I would not

reach the merits of this dispute. Instead, I would hold

that we lack jurisdiction over this case because

Plaintiffs lack Article III standing

The doctrine of standing requires that Plaintiffs

demonstrate a concrete and particularized injury

caused by the passage of Resolution No. 168-06. But

the resolution plainly applies (albeit in a non-binding,

hortatory way) only to persons and entities other than

Plaintiffs. Plaintiffs do not allege any form of concrete

and particularized injury resulting from the resolution

they allege only a deep and genuine offense. It is

bedrock principle of federal courts’ limited jurisdictior

that a person’s deep and genuine offense to a

defendant’s actions, without more, generally does not

suffice to confer standing. Here, Plaintiffs do not alleg:

more

The doctrine of standing not only ensures robust

litigation by interested parties, but also protects the

interests of those potential plaintiffs who have chosen,

for whatever reason, not to bring suit. Plaintiffs’

allegations suggest that several entities and

individuals—including Cardinal Levada, Archbishop

Niederauer, and Catholic Charities—likely have

standing. Just as much as we must resolve all case:

within our jurisdiction, we also must respect tl

decision by those persons and entities not to sue

Because a majority of the en banc panel holds tha

we have jurisdiction, I dissent from that portion of th.

disposition. But, because I agree with the judgment

affirming the district court’s dismissal of the action

concur in the judgment

FACTUAL AND PROCEDURAL HISTO!

Catholic Charities is an agency of the |;

Francisco Archdiocese of the Catholic Church.

operates as a non-profit provider of social services i

the Bay Area. Until 2006, Catholic Charities’ servi

included placing children with adoptive parent

In March 2006, Cardinal William Joseph Levada

the head of the Congregation for the Doctrine of the

Faith, issued a directive to Catholic Charities. The

lirective instructed Catholic Charities to stop placi

4U0a

children in need of adoption with same-sex couple:

The San Francisco Board of Supervisors responded by

unanimously adopting a non-binding resolution

[Resolution urging Cardinal Levada

withdraw his directive to Catholic Charitie:

forbidding the placement of children in need of

adoption with same-sex couples]

Resolution urging Cardinal William

Levada, in his capacity as head of the

Congregation for the Doctrine of the Faith

at the Vatican, to withdraw his

discriminatory and defamatory directive

that Catholic Charities of the Archdiocese

of San Francisco stop placing children in

need of adoption with homosexual

households.

WHEREAS, it is an insult to all Sa

Franciscans when a foreign country, like the

Vatican, meddles with and attempts te

negatively influence this great City’s existing

and established customs and traditions such a

the right of same-sex couples to adopt and car

for children in need; and

WHEREAS, The statements of Cardina

Levada and the Vatican that “Catholic agenci:

should not place children for adoption in

homosexual households,” and “Allowing

children to be adopted by persons living in suc}

unions would actually mean doing violence

these children” are absolutely unacceptabl

e citizenry of San Francisco; and

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nat substantia! boay i body of law

in detail in this opinion but referenced

list form, in h

Furthermore, the list in majority opinion identifi

he constitutional issues that either the Suprem:

Court or we have addressed in an earlier case. Maj. 0]

it 17367-68. The majority then concludes that, becaus:

the courts have addressed those issues, surely

finding of standing in this case is consistent with thos

‘ases. See id. at 17369-70 (“If we conclude that

plaintiffs in the case before us have standing, we nee

10t decide whether those cases retain their vitality «

ire overruled, because our conclusion would

onsistent with them.”). But standing focuses on

plaintiff, not on the issue. That this case raise:

interesting constitutional issue similar to 1:

oa Lit

>

iddressed in previous cases Is, quite simply, beside ft]

point.” The relevant questions are whether

plaintiff has suffered a cognizable in

hat injurv is redressal

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jury ana whnetn

ctrine for shutting the courthouse door to those whose cau

ve do not like.” Maj. op. at 17367. Indeed, at least some of tho

vho join this opinion might have been inclined to agree that th

lution violates the Establishment Clause, had a prop:

plaintiff brought this case. Equally important, however, standin:

s emphatically not a doctrine for opening the courthouse door t

eryone who wishes us to resolve their questions of constitutior

how » ’ ademicall, inter tine the

se questior

vwernmentail Foltctes or statu

In many cases, including recent ones, plaintiffs

have raised Establishment Clause challenges to

specific governmental policies or statutory provisions

See, e.g., Larson, 456 U.S. at 230-34 (state statute

imposing registration and reporting requirements on

“religious organizations’); Newdow v. Lefevre, 598 F.3d

638, 641 (9th Cir. 2010) (federal statute declaring the

national motto “In God We Trust”); Newdow v. Rio

Linda Union Sch. Dist., 597 F.3d 1007, 1012-13 (9th

Cir. 2010) (federal statute codifying the pledge of

allegiance as including the words “under God”);

Chaplaincy of Full Gospel Churches v. U.S. Navy (In re

Navy Chaplaincy), 534 F.3d 756, 758-59 (D.C. Cir

2008) (federal policy concerning navy chaplains

retirement benefits), cert. denied, 129 S. Ct. 1918

(2009); Graham v. Deukmejian, 713 F.2d 518, 519 (9th

Cir. 1983) (state policy requiring blood transfusions

during certain surgeries, contrary to religious beliefs

of Jehovah’s Witnesses); Flora v. White, 692 F.2d 53.

54 (8th Cir. 1982) (per curiam) (state constitutional

provision requiring certain officeholders and witnesses

to profess their belief in the existence of “a God”); se.

also Am. Family Ass’n v. City of San Francisco, 27%

F.3d 1114, 1119-20 (9th Cir. 2002) (municipal board of

supervisors formal disapproval of an advertising

aaa mcail r religious or ee oe ee

ampaign by religious groups);* cf. Smelt v. Cnty

In American Family, we did not discuss standing but, rathe

asserted jurisdiction over the Establishment Clause issue sul

silentio. Sub silentio holdings on jurisdiction occupy an interesting

place in our jurisprudence. We cannot ignore such holdings. See

KE. Enters. v. Apfel, 524 U.S. 498, 522 (1998) (“ ‘While we are not

bound by previous exercises of jurisdiction in cases in which our

power to act was not questioned but was passed sub silent

Ibs é onae.

challenge to federal statute concerning same

pul

have held that, if the statute or policy applies to tl

laintiff in a concrete manner, then the plaintiff h

tanding. See Larson, 456 U.S. at 241 (“The threaten

pplication of [the statutory provision] to the Chun

surely amounts to a distinct and palpable injury

the plaintiffsj: It disables them from. solicitii

yntributions in the State of Minnesota unless t

‘hurch complies with registration and_ reporti

|

marriages on other constitut ional grounds) The ce

equirements that are hardly de minimis Graha

13 F.2d at 519 (“The Witnesses must show that t

ive suffered injury, or that future inju

hreatened, as a result of the defendants’ conduct

Vitnesses have so alleged, claiming that

ransfusions are contrary to their religious beliefs a

iat California’s actions threaten to discou:

hysicians from performing certain operations with

h transfusions.” (citation omitted)). If the plair

LHe pI!

bject to the challenged

‘

kOUu : I repal

idicial authority assumed to be proper’ in p1

ruoting Brown Shoe Co. v. United States, 370 \

1962))). But their import necessarily is difficult to assess b

definition, there is no reasoning in the opinion that ws

pply to the case at hand. In any event, no difficulty is preset

ere, because the facts of American Family plainly establish t}

he standing requirements I discuss in text were met in that

which may explain our silence 6n the issue). For instance, I ta

idicial notice of the complaint in American Famuly. The plainti

here alleged the government's policy statement was direct

pecifically at the plaintiffs and that the statement prevented t

laintiffs from placing certain television advertisements that t

therwise would have placed

\ ’

] ‘ ‘ } ]

She

a

. ——

met

58a

other defendants, on the theory that they were

complicit). Id. at 609. After all, the plaintiffs “were

subjected to an unwelcome religious recitation at a

school function.” Jd. But whether the plaintiffs had

standing to challenge the school’s “past policy of

allowing prayer at graduation ceremonies| }

present[ed] a much closer issue.” Jd. The court

acknowledged that the school’s announcement to the

students at the mandatory rehearsal that, consistent

with the school’s tradition, the graduation ceremony

would include an invocation and_ benediction

constituted some _ personal contact with = an

endorsement of religion. 7d. at 609-10. Nevertheless,

the court concluded that the plaintiffs lacked standing

to pursue this claim, both because the plaintiffs’

contact with endorsement was insufficient and because

the plaintiffs did not allege that the past policy caused

them any particularized injury. /d.

3. Religious Display Cases

In a legion of cases, plaintiffs have challenged

religious displays. See, e.g., Lefevre, 598 F.3d at 640

(national motto “In God We Trust” on the nation’s

coins and currency); ACLU of Ky. v. Grayson Cnty.,

591 F.3d 837, 840-41 (6th Cir. 2010) (Ten

Commandments in county courthouse); Cooper, 577

F.3d at 484 (religious displays at post office); Green v.

Haskell Cnty. Bd. of Comm'rs, 568 F.3d 784, 787-88

(10th Cir. 2009) (Ten Commandments on courthouse

green), cert. dented, 130 S. Ct. 1687 (2010); Caldwell v.

Caldwell, 545 F.3d 1126, 1128 (9th Cir. 2008)

(religious statements on public university’s website),

cert. dented, 129 S. Ct. 1617 (2009); Barnes-Wallace v.

City of San Diego, 530 F.3d 776, 783 (9th Cir. 2008)

(order) (Boy Scout symbols in public park), cert.

59a

denied, 130 S. Ct. 2401 (2010); Vasquez, 487 F.3d at

1247-48 (removal of cross on county seal); O'Connor v.

Washburn Univ., 416 F.3d 1216, 1218-19 (10th Cir.

2005) (statue of Roman Catholic bishop displayed at

public university in outdoor art show); Books uv.

Elkhart Cnty., 401 F.3d 857, 858 (7th Cir. 2005) (Ten

Commandments on public property); ACLU of Ohio

Found., Inc. v. Ashbrook, 375 F.3d 484, 487 (6th Cir.

2004) (Ten Commandments on courtroom wall);

Buono, 371 F.3d at 544 (cross on a hill); ACLU Neb.

Found. v. City of Plattsmouth, 358 F.3d 1020, 1024-25

(8th Cir. 2004) (Ten Commandments in public park),

adopted in relevant part, 419 F.3d 772, 775 n.4 (8th

Cir. 2005) (en banc); Glassroth v. Moore, 335 F.3d

1282, 1284 (llth Cir. 2003) (Ten Commandments

monument at Alabama State Judicial Building);

Adland v. Russ, 307 F.3d 471, 474-75 (6th Cir. 2002)

(Ten Commandments on public property); ACLU-Nd v.

Twp. of Wall, 246 F.3d 258, 260 (3d Cir. 2001) (holiday

display on public property); Books v. City of Elkhart,

235 F.3d 292, 294 (7th Cir. 2000) (Ten Commandments

on front lawn of municipal building); Suhre, 131 F.3d

at 1084 (Ten Commandments in county courthouse);

Separation of Church & State Comm. v. City of

Eugene, 93 F.3d 617, 618 (9th Cir. 1996) (per curiam)

(51-foot Latin cross on butte in city park); Doe v. Cnty.

of Montgomery, 41 F.3d 1156, 1157 (7th Cir. 1994) (the

words “THE WORLD NEEDS GOD” above entrance to

county courthouse); Washegesic v. Bloomingdale Pub.

Schs., 33 F.3d 679, 681 (6th Cir. 1994) (painting of

Jesus Christ in public school hallway); Gonzales v. N.

Twp. of Lake Cnty., 4 F.3d 1412, 1414 (9th Cir. 1993)

(crucifix in public park); Ellis v. City of La Mesa, 990

F.2d 1518, 1520 (9th Cir. 1993) (giant crosses on public

land and on city insignia); Murray, 947 F.2d at 149

(cross on city seal); Hewitt v. Joyner, 940 F.2d 1561,

60a

1562-63 (9th Cir. 1991) (religious statues in public

park); Harris v. City of Zion, 927 F.2d 1401, 1402 (7th

Cir. 1991) (crosses on city seal); Freedom from Religion

Found., Inc. v. Ztelke, 845 F.2d 1463, 1465 (7th Cir.

1988) (Ten Commandments in public park); Saladin,

812 F.2d at 688-89 (the word “Christianity” on city

seal); ACLU of Ill. v. City of St. Charles, 794 F.2d 265,

267 (7th Cir. 1986) (ighted cross on public property);

Hawley v. City of Cleveland, 773 F.2d 736, 737 (6th

Cir. 1985) (chapel in public airport); Rabun Cnty., 698

F.2d at 1100-01 (lighted cross in a public park); see

also McCreary Cnty. v. ACLU of Ky., 545 U.S. 844, 851

(2005) (“‘large, gold-framed copies” of the Ten

Commandments at county courthouses “posted in a

very high traffic area of the courthouse” (internal

quotation marks omitted)); Van Orden v. Perry, 545

U.S. 677, 681 (2005) (Ten Commandments monolith

standing “6-feet high and 3 1/2-feet wide” in public

park); Cnty. of Allegheny v. ACLU Greater Pittsburgh

Chapter, 492 U.S. 573, 578 (1989) (créche in county

courthouse and menorah outside county building);

Lynch v. Donnelly, 465 U.S. 668, 671 (1984) (Creche

containing figures “ranging in height from 5 [inches] to

5 [feet]”).° In each case, the plaintiffs alleged that they

were deeply offended by the presence of the religious

display on public property and sought its removal.

° In the four cases following the “see also” indicator, I again list

the cases in which the Supreme Court did not discuss standing

but, rather, asserted jurisdiction over the Establishment Clause

issue sub silentio. As explained above, supra note 4, sub silentio

holdings on jurisdiction can present interesting challenges. But,

here again, as with the cases noted in the preceding footnotes, the

facts of the listed cases plainly establish that the standing

requirements I discuss 1n text were met.

6la

The courts consistently have applied the same

general legal rules. A plaintiff has standing to

challenge a religious display if he or she alleges a

change in behavior (for instance, affirmative avoidance

of the religious display). Rabun Cnty., 698 F.2d at

1108. But, although an allegation of a change in

behavior is sufficient to confer standing, it is not

required. Vasquez, 487 F.3d at 1251-52; Suhre, 131

F.3d at 1087-88; Foremaster v. City of St. George, 882

F.2d 1485, 1490-91 (10th Cir. 1989); Saladin, 812 F.2d

at 692-93.’ A plaintiff also has standing when he or

she has alleged “direct and unwelcome contact” with

the religious display. Grayson Cnty., 591 F.3d at 843;

Green, 568 F.3d at 794; Books, 401 F.3d at 861; City of

Plattsmouth, 358 F.3d at 1030; accord Lefevre, 598

F.3d at 642 (“unwelcome direct contact”); Caldwell,

545 F.3d at 1132 (same); Vasquez, 487 F.3d at 1253

(same); Ashbrook, 375 F.3d at 490 (“direct, unwelcome

contact”); Suhre, 131 F.3d at 1088 (“direct unwelcome

contact”). In the absence of “direct and unwelcome

contact,” however, a plaintiff cannot meet the standing

requirements, even if he or she has contact with a

religious display and is offended by it: “In certain

cases, a plaintiff's contact with an allegedly offensive

religious or anti-religious symbol will remain too

* The Seventh Circuit’s position on this point is a bit uncertain.

Compare Zielke, 845 F.2d at 1467 (suggesting that an allegation

that the plaintiff altered behavior is necessary to establish

standing), with Cnty. of Montgomery, 41 F.3d at 1161 (discussing

Zielke and suggesting that its holding was not so broad); see also

City of Plattsmouth, 358 F.3d at 1029 n.7 (“It appears likely the

Seventh Circuit has disowned the ‘altered behavior’ test and

distinguished this language contained in Zielke.” (citing Cnty. of

Montgomery, 41 F.3d at 1160-61)). At most, the Seventh Circuit

constitutes a minority of one circuit.

62a

tenuous, indirect, or abstract to give rise to Article III

standing.” Vasquez, 487 F.3d at 1251; see also

Caldwell, 545 F.3d at 1132-33 (holding that the

plaintiff's injury was insufficient for standing purposes

because of the tenuous nature of the connection

between a website user and the religious message on

a webpage and because her contact with the web site

was less forced than in Vasquez); Cnty. of Montgomery,

41 F.3d at 1161-62 (holding that a lawyer did not have

standing to challenge a religious display in a

courthouse where the lawyer had not alleged that he

would have any contact with the display); Washegesic,

33 F.3d at 682 (noting that “psychological harm alone

is not always a sufficient injury for standing purposes

when contact [with a religious display such as a

picture of Jesus Christ in a school’s hallway] is

indirect”); Harris, 927 F.2d at 1406 (holding that “the

fact that the plaintiffs may be offended by the seals. . .

does not confer standing”).

A plaintiff who challenges a religious display meets

the “direct and unwelcome contact” requirement by

demonstrating some level of frequent or regular

contact with the display during the course of the

plaintiffs regular routine, such that the plaintiff was

“forced” to encounter the display. For example, in

Vasquez, 487 F.3d at 1251-52, the plaintiff challenged

the existence of a cross on a county seal—which he

encountered on a regular basis as a county resident

and county employee. We held that the plaintiff had

standing because he “held himself out as a member of

the community where the seal is located, as someone

forced into frequent regular contact with the seal, and

perhaps most importantly, as someone ‘directly

affected’ by his ‘unwelcome direct contact’ with the

63a

seal.” Id. at 1251 (emphases added). We explained

further:

Unlike plaintiffs in Valley Forge, who were

physically removed from defendant’s conduct,

Vasquez is a member of the community where

the allegedly offending symbol! is located, and

his contact with the symbol was frequent and

regular, not sporadic and remote. In fact, .. .

the offending symbol “will be displayed on

county buildings, vehicles, flags, stationary

{sic], forms, commendations, uniforms, and

elsewhere through LA County,” thereby forcing

Vasquez into unwelcome “daily contact and

exposure” of the most pervasive kind. These

facts and allegations make Vasquez’s status

fundamentally different from that of plaintiffs

in Valley Forge.

Id. at 1252 (emphases added).

As another example, in Suhre, 131 F.3d at 1084-85,

the plaintiff challenged a display of the Ten

Commandments in the main courtroom of the county

courthouse. The Fourth Circuit held that the plaintiff

had standing because of his regular visits to that

courtroom, both as a frequent litigant and as a

participant in local government meetings (as a plaintiff

and witness in past civil actions, as a defendant in

criminal actions, and as an attendee at four past

meetings of local government). Jd. at 1090. The court

found it relevant that the plaintiff “must confront the

religious symbolism whenever he enters the courtroom

on either legal or municipal business.” Jd. (emphasis

added).

64a

Vasquez and Suhre are but two examples: In all

other cases, too, the courts have held that the plaintiff

has standing because of some level of regular or

frequent contact with the religious display during the

course of the plaintiffs routine business. See, e.g.,

Lefevre, 598 F.3d at 642 (the plaintiff encounters the

national motto on “coins and currency in everyday life”

which “forces him repeatedly to encounter a religious

belief he finds offensive” (emphasis added)); Green, 568

F.3d at 793-94 (the plaintiff visits the courthouse “on

a weekly basis” for business and avocational purposes

and “cannot avoid” the religious display); O’Connor,

416 F.3d at 1223 (the plaintiff professor and student

“were frequently brought into direct and unwelcome

contact” with a religious display “at a prominent

location on campus” (emphasis added)); Ashbrook, 375

F.3d at 489-90 (the plaintiff “who travels to and must

practice law within [the relevant] courtroom from time

to time” and who “has and would continue to come into

direct, unwelcome contact with the Ten

Commandments display, the removal of which would,

no doubt, prevent further injury to him” (emphases

added)); Glassroth, 335 F.3d at 1292 (“The three

plaintiffs are attorneys whose professional duties

require them to enter the Judicial Building regularly,

and when they do so they must pass by the

monument.” (emphases added)); Saladin, 812 F.2d at

692 (the plaintiffs “regularly receive correspondence on

city stationery bearing the seal [that contains the word

‘Christianity” (emphasis added)); see also Twp. of

Wail, 246 F.3d at 266 (noting that it was relevant

whether the plaintiff visited a holiday display only “to

describe the display for this litigation or whether, for

example, he observed the display in the course of

satisfying a civic obligation”).

65a

To be sure, courts have “recognized that ‘(tlhe

practices of our own community may create a larger

psychological wound than someplace we are just

passing through.’” Suhre, 131 F.3d at 1087 (alteration

in original) (quoting Washegesic, 33 F.3d at 683).

Accordingly, “where there is a personal connection

between the plaintiff and the challenged display in his

or her community, standing is more likely to lie.” /d.;

see also City of Plattsmouth, 358 F.3d at 1030 (“That

the injuries are caused by [the plaintiffs] own City is

all the more alienating.”); City of St. Charles, 794 F.2d

at 268 (“Maybe it ought to make a difference if... a

plaintiff is complaining about the unlawful

establishment of a religion by the city, town, or state

in which he lives.”). But no court has adopted a per se

rule that the location of a religious display in the

plaintiffs hometown or home state automatically

confers standing on the plaintiff. See Suhre, 131 F.3d

at 1087 (holding that, where the display is in the

plaintiffs community, “standing is more likely to lie”

only “where there is a personal connection between the

plaintiff and the challenged display” (emphases

added)); Rabun Cnty., 698 F.2d at 1107 (holding that

the location of the display in the plaintiffs’ home state

was one of several relevant “factors”). As in all cases,

even when the religious display is in the plaintiffs

hometown, the plaintiff must establish direct and

unwelcome contact with the display. See, e.g., Suhre,

131 F.3d at 1090 (determining whether the plaintiff

has the requisite direct and unwelcome contact with

the display, even though the display is located in the

plaintiffs municipality).

Finally, the injury arises not purely from the

psychological harm of viewing the display, but from

the consequence of that harm. That is, a plaintiffs

66a

negative reaction to a religious display on public

property interferes with the plaintiffs right to “ ‘freely

use public areas.’ ” Ellis, 990 F.2d at 1523 (quoting

Hewitt, 940 F.2d at 1564); accord Ouachita Parish, 274

F.3d at 292 (“use or enjoyment of a public facility”);

City of Eugene, 93 F.3d at 619 n.2 (“freely using the

area on and around [the public park]”); Gonzales, 4

F.3d at 1417 (“full use and enjoyment of the public

park”); Hawley, 773 F.2d at 740 (“impairment of their

beneficial use of a public facility which they frequently

use”). “We have repeatedly held that inability to

unreservedly use public land suffices as injury-in-fact.

Such inhibition constitutes ‘personal injury suffered

. as a consequence of the alleged constitutional

error, beyond simply ‘the psychological consequence

presumably produced by observation of conduct with

| which one disagrees.” “ Buono, 371 F.3d at 547

(citations omitted) (ellipsis in original) (quoting Valley

Forge, 454 U.S. at 485); see also Barnes-Wallace, 530

F.3d at 784 (“As in Buono, [the plaintiffs) have alleged

injuries beyond ‘the’ psychological consequence

presumably produced by observation of conduct with

which they disagree,’ because their inhibition

interferes with their personal use of the land.”

(brackets omitted) (quoting Valley Forge, 454 U.S. at

485)).

B. Resolution No. 168-06 and Alleged Harm te

Plaintiffs

Plaintiffs challenge Resolution No. 168-06. They

allege that the resolution “attacks [their] deeply held

religious beliefs,” “stigmatizes Plaintiffs on account of

their religious beliefs,” and “sends a clear message . . .

that they are outsiders, not full members of the

political community.” Plaintiffs allege that, as

asaennernneettel

67a

residents of San Francisco and members of the

Catholic Church, the resolution “chill[s] their access to

the government.” “As a result of [the] resolution,

Plaintiffs ... will curtail their activities to lessen their

contact with Defendants, thereby causing further

harm.”

In some ways, Plaintiffs’ allegations evince a much

stronger connection to the challenged governmental!

action than the plaintiffs’ allegations in Valley Forge.

The plaintiffs in Valley Forge had never visited, and

had no other connection to, the land in question. Here,

Plaintiffs reside in San Francisco, and Defendants

operate as the San Francisco municipal government.

There is no geographical separation. Additionally,

Plaintiffs view the resolution as a direct attack on

their specific religion: Catholicism. There may be some

stronger connection to the challenged government

action when the action is perceived as a direct attack

on one’s own religion, as distinct from a more general

offense that the government is condoning or conveying

religious messages with which one generally disagrees

or to which one does not adhere. I acknowledge that

Plaintiffs’ residency and their perception of the

government action as attacking their specific religion

distinguish this case in significant ways from the

Supreme Court’s Valley Forge decision.

In other ways, however, the allegations in the

complaint suggest that Plaintiffs are more akin to

“concerned bystanders,” Valley Forge, 454 U.S. at 473

(internal quotation marks omitted), who have suffered

no injury “other than the psychological consequence

presumably produced by observation of conduct with

which one disagrees,” id. at 485. The parties do not

dispute that the resolution is entirely non-binding and

68a

that it has no legal effect. It confers no benefits or legal

rights. It imposes no obligations or responsibilities on

anyone. It alters no government process, ordinance, or

plan. In short, it does not do anything, other than to

“urge” Cardinal Levada to withdraw his directive

concerning Catholic Charities’ adoption policies. This

hortatory resolution is like precatory text in a statute’s

preamble, which plaintiffs lack standing to challenge

unless the text applies to them “in some concrete way.”

Webster v. Reprod. Health Servs., 492 U.S. 490, 506

(1989); see also id. at 504-07 (discussing this issue

generally).

As discussed above, Plaintiffs are not the first to

challenge a governmental policy or provision.® And, as

discussed above, the courts have developed consistent

requirements for establishing standing: In order to

establish standing, Plaintiffs must allege that the

provision applies to them in some direct and concrete

manner. Plaintiffs’ allegations here do not suffice.

Plaintiffs do not, and could not, claim that they are

subject to the provisions of the non-binding resolution

They do not claim to be subject to the government’s

° The majority opinion incorrectly asserts that I conclude that this

case does not involve a challenge to a governmental policy or

provision. Maj. op. at 17369-70 n.26. To the contrary, Plaintiffs

here challenge a resolution enacted by Defendants, and I agree

completely with the majority that “an official resolution of the City

of San Francisco is indeed a case involving a specific governmental

policy.” Jd. (internal quotation marks and brackets omitted). In

text, lapply, as we must, the clear standing requirements that we

and other courts have developed in cases involving challenges to

governmental policies. The majority opinion fails even to

acknowledge those requirements or, in large degree, even the

relevant cases.

69a

action—the “urging” of Cardinal Levada to retract his

earlier directive. Instead, they claim harm from the

“message” that the resolution’s terms “sends” to

Plaintiffs. I agree with the District of Columbia Circuit

that, “[w]hen plaintiffs are not themselves affected by

a government action except through their abstract

offense at the message allegedly conveyed by that

action, they have not shown injury-in-fact to bring an

Establishment Clause claim.” Jn re Navy Chaplaincy,

534 F.3d at 764-65.

Plaintiffs here have expressed their deep and

genuine offense. Their status as Catholics and San

Francisco residents distinguishes their concerns, at

least to some extent, from the concerns of others who

may view the resolution as offensive. In the end,

however, the resolution carries no legal effect and,

perhaps most importantly, does not apply to Plaintiffs.

Plaintiffs effectively ask us to hold that any person

has standing to challenge any governmental! action on

Establishment Clause grounds, so long as the plaintiff

resides within the government’s territory and is

offended by the action’s alleged attack on the plaintiffs

religion. As discussed above, in Part A, a governmental

action within one’s own community suggests that

standing is more likely to lie. But the courts have

declined to apply a per se rule that those who reside

within the geographic boundaries of the government

automatically have standing to challenge the

government’s actions. Instead, the courts have

required a showing that the challenged action actually

affects these particular plaintiffs. Resolution No.

168-06 simply does not apply to Plaintiffs.

70a

Nor does the fact that Plaintiffs perceive the

resolution as a direct attack on their specific religion

suffice to meet the “particularized” requirement.” In

that regard, Plaintiffs’ claims here are

indistinguishable from the plaintiffs’ claims in Flora,

692 F.2d at 54. There, the atheist plaintiffs, who

resided in Arkansas, challenged a state constitutional

provision that barred atheists from certain civic

opportunities. /d. The Eighth Circuit held that, unless

the plaintiffs could demonstrate that they had been, or

would be, actually subject to the provision (which they

could not), the plaintiffs lacked standing. Jd. Citing

Valley Forge, the court rejected the plaintiffs’ theory

that, “as atheists, they have suffered adverse

psychological consequences as a result of the continued

presence of this section in the Arkansas Constitution.”

Id. Like the Arkansas atheists in Flora, the San

Francisco Catholics here cannot demonstrate that they

are subject to the challenged provision, even though

* It is easy to overstate this distinction. A person who adheres to

a religion other than, for example, Christianity may perceive the

government’s placement of a cross on a hill as a direct negative

attack on that person’s non-Christian religion, rather than as an

affirmative endorsement of Christianity. Precisely for this reason,

the courts have treated an endorsement and a disapproval as two

sides of the same coin in the Establishment Clause context. See,

eg., Lynch, 465 US. at 688 (O'Connor, J., concurring)

(“Endorsement sends a message to nonadherents that they are

outsiders, not full members of the political community, and an

accompanying message to adherents that they are insiders,

favored members of the political community. Disapproval sends

the opposite message.”). Similarly, an atheist might view the

national motto, “In God We Trust,” as an attack on his or her

religious beliefs. But that fact is insufficient to confer standing.

Lefevre, 598 F.3d at 643. I therefore decline to attribute much

significance to this distinction for standing purposes

dla

they allege adverse psychological consequences as a

result of the resolution’s pussage. Accordingly,

Plaintiffs do not have standing

The same analysis applies to our recent decisions

involving atheist plaintiffs’ challenge to the national

motto, “In God We Trust,” Lefevre, 598 F.3d at 643,

and to the inclusion of the words “under God” 1n the

national pledge of allegiance, Rio Linda, 597 F.3d at

1016. In those cases, the plaintiffs challenged not only

the federal statute declaring our national motto and

the federal statute adding the words “under God” to

our pledge of allegiance, but the plaintiffs also

challenged the statutes and policies that required that

the motto be inscribed on our coins and currency and

that the pledge be recited in schools. Lefevre, 598 F.3d

at 643; Rio Linda, 597 F.3d at 1016. We held that the

plaintiffs lacked standing to challenge the first type of

statute: the federal statute declaring our national

motto, Lefevre, 598 F.3d at 643, and the federal statute

adding the words “under God” to our pledge of

allegiance, io Linda, 597 F.3d at 1016. The fact that

a statute on the books made the plaintiff feel like a

“political outsider| |” and “inflictled] a stigmatic

injury” was “insufficient to confer standing.” Lefevre,

598 F.3d at 643; see also Rio Linda, 597 F.3d at 1016

(holding that, “because the Pledge docs not mandate

that anyone say it, [the plaintiff] has no personal

injury to contest its wording in the courts” and

therefore lacks standing to challenge the federal

statute declaring the pledge). By contrast, we held that

the plaintiff did have “standing to challenge the

statutes that require the inscription of the motto on

coins and currency .. . given the ubiquity of coins and

currency in everyday life,” Lefeure, 598 F.3d at 642,

and that plaintiff parents of schoolchildren did have

(2a

standing to challenge the state statute and school

district policy permitting teachers to lead students

through recitation of the pledge of allegiance, Rio

Linda, 597 F.3d at 1016. Those statutes had a direct

effect on the plaintiffs.

Here, Plaintiffs challenge the resolution only. As in

Lefevre and Rio Linda, Plaintiffs allege that the

governmental action makes them feel like political

outsiders and stigmatizes them because of their

religious beliefs. And, as in Lefevre and Rio Linda,

those allegations are insufficient. Plaintiffs’ contact

with the resolution here is no greater than the

plaintiffs’ contact with the federal statutes at issue in

Lefevre and Rio Linda.

In those cases, we held, of course, that the plaintiffs

had standing to challenge other statutes and policies

those statutes that put the plaintiffs in direct and

unwelcome contact with the religious statement or

religious exercise. But, in this case, there are no such

other statutes or policies and no such direct and

unwelcome contact. Clearly, Defendants have in no

way inscribed the resolution on an item of everyday

life such that Plaintiffs must encounter it, and

Defendants have in no way required Plaintiffs to

participate in a daily recitation of the resolution

Plaintiffs’ challenge is limited to the resolution itself,

which sets forth Defendants’ policy statement on a

matter of concern to the City—the precise parallel to

the federal statutes setting forth our national motto

and pledge of allegiance. Just as the plaintiffs’ dee;

offense at the national motto and pledge of allegiance

could not confer standing, neither can Plaintiffs’ deep

offense at Defendants’ resolution confer standing here

T3a

In conclusion, Plaintiffs’ allegations are, in all

relevant respects, identical to the plaintiffs’ allegations

in our recent decisions in Rio Linda and Lefevre and to

the plaintiffs’ allegations in Flora. Just as the

allegations in those cases were insufficient to confer

standing, so too are Plaintiffs’ allegations here.

The majority fails to grapple with our holdings in

Rio Linda and Lefevre. In particular, our holding in

Lefevre, 598 F.3d at 643, applies with equal force here:

“Although [Plaintiffs] allege[ } the [resolution] turns

[Catholics] into political outsiders and inflicts a

stigmatic injury upon them, an ‘abstract stigmatic

injury resulting from such outsider status is

insufficient to confer standing.” The majority

distinguishes those cases, and all other precedent, only

on the ground that this case involves an unambiguous

condemnation of a specific religion, while previous

ones involved “vague and general religiosity.” Maj. op.

at 17370 n.26. As an initial matter, despite the great

number of previous decisions involving challenged

governmental actions, the majority cites not a single

one in which the ambiguity or plainness of the

perceived condemnation or endorsement of religion is

even mentioned by a reviewing court for purposes of

the standing inquiry. I do not, of course, question that

Plaintiffs view the resolution as an attack on their

religion. Similarly, though, courts in previous cases

have not questioned that the plaintiffs viewed the

challenged governmental action as an attack on, or an

endorsement of, a specific religion. Whether the

members of the reviewing court perceive the alleged

attack or endorsement as “plain” or “ambiguous”

seems fraught with difficulty. And, in many of the

cases [ have cited, [see no ambiguity. For example, the

statute declaring our motto as “In God We Trust” is an

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unambiguous endorsement of theistic religions at the

expense of the beliefs of atheists. Similarly, the

placement of a cross on a city’s seal is an unambiguous

endorsement of Christianity at the expense of

non-Christian religions. Yet, in Lefevre and Vasquez,

and in all our other previous cases, the ambiguity or

plainness of the challenged governmental action

played no part in the analysis of standing.

Plaintiffs next argue, by way of analogy, that the

resolution is similar to a religious display. They

contend that, because they have been exposed to the

“display,” they have alleged sufficient “contact” with

the “display” to constitute an injury in fact. The

complaint does not allege the manner in which

Plaintiffs encountered the resolution or the form of

“display” to which Plaintiffs object, but it appears that

Plaintiffs mean that they have read the resolution.

That fact does not confer standing.

To begin with, the resolution is not a display; it is

an act (albeit a non-binding act) of a legislative body.

Had Defendants reproduced the resolution, for

example, in giant letters above the entrance to City

Hall, Cnty. of Montgomery, 41 F.3d at 1158, or chiseled

the resolution into a block of stone eight feet tall and

three feet wide in a public park, Green, 568 F.3d at

789-90, the resolution’s representation in those forms

would constitute a religious display. As it is, though,

the complaint fails to allege that this resolution has

received greater prominence than any other. The

resolution was posted, like every other resolution, on

Defendants’ website. See http://www.sfbos.org/ftp/

uploadedfiles/bdsupvrs/resolutions06/r0 168-06. pdf.

Th.

fv0a

The mere existence of an enactment on the books

(or virtual books) is not enough. In the religious

display context, a plaintiff has standing when he or

she encounters the display with some level of

frequency or regularity during the course of the

plaintiffs typical routine. It is that “direct and

unwelcome contact” with the display that confers

standing on the plaintiff. Here, Plaintiffs read the

resolution. But apart from that initial contact,

Plaintiffs allege no facts to suggest that they ever

would have reason toread the resolution again, as part

of their regular routine or otherwise (except to

facilitate this litigation). In summary, even if |

construed the resolution as a religious display, which

it is not, Plaintiffs could not meet the “direct and

unwelcome contact” requirement that courts

consistently have applied in religious display cases

In this regard, our recent decision in Caldwell, 545

F.3d 1126, is instructive. There, the plaintiff objected

to a webpage on a government website. Jd. at 1128

The plaintiff argued that,

like the plaintiffs in [religious display] case:

she also came into direct contact with a

religious symbol on property owned by the

government which she finds offensive; and that,

just as the inability of plaintiffs in those cases

freely to use public land sufficed as injury in

fact, so too should it suffice that she is inhibited

from freely using a government resource

without running into religious symbols and

theological statements which offend her

Id. at 1131. We rejected her argument, because her

interest in using the website was no different than

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anyone else’s: Her interest was “not sufficiently

differentiated and direct to confer standing on her ....

An interest in informed participation in_ public

discourse is one we hold in common as citizens in a

democracy.” /d. at 1133. Judge Fletcher wrote

separately “to elaborate more fully why Caldwell lacks

standing.” Jd. (B. Fletcher, J., concurring). Judge

Fletcher held that the plaintiff could not establish an

injury in fact because:

Caldwell also does not allege that her

contact with the offensive views expressed on

the [government] website was “frequent and

regular” or “unwelcome.” |Vasquez, 487 F.3d at

1251-52]. There is no allegation that Caldwell

had any reason to visit the offending web page

more than once. Nor did the single offending

web page prevent Caldwell from freely using the

rest of the [Understanding Evolution] website:

the site comprises approximately 840 pages,

each of which can be viewed without having

first viewed the offending page.

Id. at 1134 (one citation omitted)

The same reasoning—of both the opinion and the

concurrence—applies here. Plaintiffs’ interest in

reading the resolutions of their municipal government

is no different than anyone else’s interest and,

therefore, “is not sufficiently differentiated and direct

to confer standing.” Jd. at 1133. Additionally, Plaintiffs

here do not allege that their contact with the

resolution was anything more than a one-time

occurrence, and “[tlhere is no allegation § that

[Plaintiffs] had any reason to visit the offending web

page more than once.” Jd. at 1134 (B. Fletcher, J.,

Ila

concurring). In sum, Plaintiffs’ allegations do not

constitute an injury “other than the psychological

consequence presumably produced by observation of

conduct with which one disagrees.” Valley Forge, 454

U.S. at 485. Plaintiffs therefore lack standing.

Plaintiffs next protest that their allegations

constitute more than pure psychological harm, because

they also allege that Defendants’ abuse of power has

“chill[ed] their access to the government. As a result of

[the] resolution, Plaintiffs . . . will curtail their

activities to lessen their contact with Defendants,

thereby causing further harm.” Plaintiffs refer us to

cases in which courts have held that plaintiffs have

standing because of an affirmative change in behavior

to avoid a particular religious display. See, e.g., Ellis,

990 F.2d at 1523 (holding that the plaintiffs have

standing because they allege that they avoid a public

park where a cross is located). Plaintiffs argue that,

like the plaintiffs in those cases who avoided public

lands to avoid a religious display, Plaintiffs here have

standing because their access to government has been

“chillfed]” and they “will curtail their activities to

lessen their contact with Defendants.” [ am

unpersuaded.

Plaintiffs’ allegations suffer from lack of specificity

It is unclear, for instance, when Plaintiffs “will” curtail

their activities. It also is unclear what contacts

Plaintiffs maintain with Defendants and how, if at all,

they “will curtail their activities to lessen [that]

contact.” These vague allegations are a far cry from the

allegations sufficient to confer standing in religious

display cases, in which the plaintiff alleges that he or

she regularly sees the offending display and explains

how his or her normal routine has changed so as to

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avoid those encounters. See, e.g., City of St. Charles,

794 F.2d at 269 (holding that one plaintiff has

standing because “she detours from her accustomed

route to avoid the [lighted] cross”); see also Mann v.

City of Tucson, 782 F.2d 790, 793 (9th Cir. 1986) (per

curiam) (“Although we must, in general, accept the

facts alleged in the complaint as true, wholly vague

and conclusory allegations are not sufficient to

withstand a motion to dis miss.”); Vasquez, 487 F.3d at

1249 n.4 (noting that the district court disregarded an

allegation that the plaintiff had “altered his behavior,”

but declining to decide the issue because other

allegations sufficed to confer standing (brackets

omitted)). Moreover, if Plaintiffs’ vague allegations of

some unspecified avoidance of governmental entities

were sufficient to confer standing to challenge a

proclamation of that governmental entity, then any

plaintiff residing within the boundaries of the

governmental body could satisfy the “injury in fact”

requirement simply by alleging, in general, a

threatened curtailment of activities with the

governmental entity. No court has accepted such a

sweeping proposition. Cf Laird v. Tatum, 408 U.S. 1,

13-14 (1972) (“Allegations of a subjective ‘chill’ are not

an adequate substitute for a claim of specific present

objective harm or a threat of specific future harm; the

federal courts established pursuant to Article ITI of the

Constitution do not render advisory opinions.”

(internal quotation marks omitted)).

Plaintiffs also point to the primary reason for the

standing doctrine: “ “The essence of the standing

inquiry is whether the [plaintiffs] have alleged such a

personal stake in the outcome of the controversy as to

assure that concrete adverseness which sharpens the

presentation of issues upon which the court so largely

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depends for tllumination of difficult constitutional

questions.’ ” Larson, 456 U.S. at 238-39 (emphasis

added) (quoting Duke Power, 438 U.S. at 72). Plaintiffs

contend that their deep opposition to the resolution is

patent and genuine and that their determined

adverseness to the resolution satisfies the basic

purpose of the standing doctrine: They are fervent

advocates who provide a sharp presentation of the

issues.

I do not question the commitment of Plaintiffs to

this case or the skill with which they have presented,

and undoubtedly would continue to present, the issues.

But the Supreme Court expressly has rejected passion

as a substitute for Article III standing. “[S]tanding is

not measured by the intensity of the litigant’s interest

or the fervor of his advocacy. ‘[T]hat concrete

adverseness which sharpens the presentation of

issues, Baker v. Carr, 369 U.S. [186,] 204 [1962], is the

anticipated consequence of proceedings commenced by

one who has been injured in fact; it is not a permissible

substitute for the showing of injury itself.” Valley

Forge, 454 U.S. at 486; see also Smelt, 447 F.3d at 685

(“Motivation alone is not enough [to satisfy standing

requirements].”).

Plaintiffs also suggest that they must have

standing to challenge the resolution because, if they do

not have standing, no one would have standing, and

that result cannot be correct. I disagree with Plaintiffs’

major premise and their minor premise. It is a bedrock

principle that the federal courts are courts of limited

jurisdiction. A wide variety of doctrines, including

standing, prevent us from hearing cases—even

otherwise meritorious cases—because of the

constitutional limits on our authority. As a general

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matter, I simply cannot accept an argument that

begins with the premise that the federal courts must

have jurisdiction over a dispute. More specifically, the

Supreme Court has roundly rejected Plaintiffs’

argument in this very context: “ “The assumption that

if respondents have no standing to sue, no one would

have standing, is not a reason to find standing.’ ”

Valley Forge, 454 U.S. at 489 (alteration omitted)

(quoting Schlesinger v. Reservists Comm. to Stop the

War, 418 U.S. 208, 227 (1974)).

Perhaps most importantly, however, Plaintiffs are

wrong to suggest that, if they lack standing, then it is

clear that no one would have standing to challenge the

resolution at issue. To the contrary, it is likely that the

parties who are personally the subjects of the

resolution, such as Cardinal Levada, Archbishop

Niederauer, and Catholic Charities, could demonstrate

cognizable harm. The record is silent as to why those

parties have not joined as plaintiffs. But their

interests, which likely are directly affected, matter.

“The Art. III aspect of standing... reflects a due

regard for the autonomy of those persons likely to be

most directly affected by a judicial order.” Valley

Forge, 454 U.S. at 473; see also id. at 489-90 (holding

that the Court was “unwilling to countenance” a theory

whereby “[t]he existence of injured parties who might

not wish to bring suit becomes irrelevant”). For

Plaintiffs, however, the resolution carries no jegal or

direct, particularized, concrete, or practical effect.

Accordingly, Plaintiffs cannot establish “injury in

fact.”

'° Although we need not reach the issue, we note in addition that

Plaintiffs almost certainly cannot satisfy the “redressability”

a...

8la

Plaintiffs lack standing because no individual

Plaintiff can establish “injury in fact.” For that reason

and because the complaint fails to allege that any

party directly targeted by the resolution is a member

of Catholic League, Catholic League likewise lacks

associational standing. See Hunt v. Wash. State Apple

Adver. Comm’n, 432 U.S. 333, 343 (1977) (holding that,

to establish associational standing, an organization

must, among other things, demonstrate that its

members would otherwise have standing to sue in

their own right).

requirement. Lujan, 504 U.S. at 560-61. The resolution exists; it

is on the books; and it is an expression of the policy preferences of

San Francisco. This court is powerless to change the opinion of the

Board of Supervisors on the subject of same-sex adoptions. Even

if we declared the resolution unconstitutional, the only real effect

of that declaration on Plaintiffs would be to make Plaintiffs

happy. Just as the negative psychological consequence of the

government’s action is insufficient to satisfy the “injury in fact”

requirement, the positive psychological consequence of the court’s

action is likewise insufficient to satisfy the “redressability”

requirement. Hints of this aspect of redressability are found

within the case law. See, e.g., Ashbrook, 375 F.3d at 489-90

(holding that the plaintiff “has and would continue to come into

direct, unwelcome contact with the [religious] display, the removal

of which would, no doubt, prevent further injury to him”);

Glassroth, 335 F.3d at 1292-93 (“[A] favorable decision will likely

redress [the plaintiffs’] injures. If {the defendant] is required to

remove the (religious display] from the public area of the Judicial

Building, the plaintiffs will no longer have to observe it or take

actions to avoid going into the building.”); Ouachita Parish, 274

F.3d at 293 (“[I]t is certain that a finding of unconstitutionality

would redress the plaintiffs’ injury, as it would .. . end[ | the

practice of verbal prayer in their schools.”); see also Doremus, 342

U.S. at 433 (holding that the plaintiffs could not maintain suit

because the student had graduated from the public school and “no

decision we could render now would protect any rights she may

once have had”).

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C. Municipal Taxpayer Standing

Plaintiffs also allege that they are municipal

taxpayers of San Francisco and that they “have been

injured by the abuse of government authority and the

misuse of the instruments of government to criticize,

demean, and attack their religion and religious

beliefs.”"’ Plaintiffs do not allege any specific

expenditure of public funds, and none is apparent from

the record. That being so, Plaintiffs cannot establish

taxpayer standing. See Doremus, 342 U.S. at 433

(holding that municipal taxpayers do not have

standing because “[t]here is no allegation that this

[government-sponsored] activity is supported by any

separate tax or paid for from any particular

appropriation or that it adds any sum whatever to the

cost of conducting the school”); id. at 434 (“It is

apparent that the grievance which it is sought to

litigate here is not a direct dollars-and-cents injury but

is areligious difference.”); Barnes- Wallace, 530 F.3d at

786 (holding that “municipal taxpayers must show an

expenditure of public funds to have standing” (citing

Madison, 177 F.3d at 793-97)).

'' Although Plaintiffs have never argued that they have standing

aS municipal taxpayers, we must consider our jurisdiction

independently of a party’s arguments. Because they allege in the

complaint that they are taxpayers of San Francisco, I addre

municipal taxpayer standing

CONCLUSION

I recognize that the failure to reach an important,

disputed constitutional issue leaves something to be

desired. But I cannot ignore the constitutional bounds

of our jurisdiction: “Article I{l, which is every bit as

important in its circumscription of the judicial power

of the United States as in its granting of that power, is

not merely a troublesome hurdle to be overcome if

possible so as to reach the ‘merits’ of a lawsuit which

a party lor, as the case may be, both parties] desires to

have adjudicated ....” Valley Forge, 454 U.S. at 476

We lack subject matter jurisdiction. I therefore concur

in the judgment affirming the district court’s order

dismissing the complaint

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APPENDIX B

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 06-17328

D.C. No. CV-06-02351-MHP

[Filed November, 5, 2009]

CATHOLIC LEAGUE FOR

RELIGIOUS AND CIVIL RIGHTS;

RICHARD SONNENSHEIN;

VALERIE MEEHAN,

Plaintiffs - Appellants,

Vv

CITY AND COUNTY OF SAN

FRANCISCO; AARON PESKIN; TOM

AMMIANO, in his official capacity as

a Supervisor, Board of Supervisors,

City and County of San Francisco,

Defendants - Appellees

_ — — _— —_ _ ~ — — ~— ~— ~_ ~— — ~~ a —

ORDER

KOZINSKI, Chief Judge

Upon the vote of a majority of nonrecused active

judges, it is ordered that this case be reheard en ban

pursuant to Circuit Rule 35-3. The three-judge panel

opinion shall not be cited as precedent. by or to an

court of the Ninth Circuit

86a

APPENDIX C

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 06-17328

D.C. No. CV-06-02351-MHP

[Filed June 3, 2009]

CATHOLIC LEAGUE FOR

RELIGIOUS AND CIVIL RIGHTS;

RICHARD SONNENSHEIN; VALERIE

MEEHAN,

Plaintiffs-Appetlants,

CITY AND COUNTY OF SAN

FRANCISCO; AARON PESKIN;

TOM AMMIANO in his official capacity

as a Supervisor, Board of Supervisors, )

City and County of San Francisco,

Defendants-Appellees.

OPINION

Appeal from the United States District Court

for the Northern District of California

Marilyn H. Patel, District Judge, Presiding

87a

Argued and Submitted

July 18, 2008—San Francisco, California

Filed June 3, 2009

Before: Procter Hug, Jr., Richard A. Paez, and

Marsha S. Berzon, Circuit Judges.

Opinion by Judge Paez;

Concurrence by Judge Berzon

COUNSEL —

Robert J. Muise, Thomas More Law Center, Ann

Arbor, Michigan, for the appellants.

Vince Chhabria, City Attorney’s Office of San

Francisco, San Francisco, California, for the appellees.

OPINION

PAEZ, Circuit Judge:

Appellants, Catholic League for Religious and Civil

Rights, Dr. Richard Sonnenshein, and Valerie Meehan

(collectively, “Catholic League” or “the League”),

appeal the dismissal of their civil rights action under

42. U.S.C. § 1983 for failure to state a claim. At issue is

the constitutionality of a non-binding resolution

adopted by the Board of Supervisors of the City and

County of San Francisco (“the Board”) concerning the

adoption of children by same-sex couples and the

Catholic Church’s position against such adoptions.

Catholic League argues that in adopting the resolution

the Board expressed disapproval of the Catholic

88a

religion in violation of the First Amendment’s

Establishment Clause. Because we conclude that the

. . ° ° l

resolution passes constitutional scrutiny, we affirm.

I.

In March, 2006, the Board passed a non-binding

resolution, Res. No. 168-06, titled: “Resolution urging

Cardinal Levada to withdraw his directive to Catholic

Charities forbidding the placement of children in need

of adoption with same-sex couples.” (“Resolution”). The

Resolution provides in full:

Resolution urging Cardinal William

Levada, in his capacity as head of the

Congregation for the Doctrine of the Faith

at the Vatican, to withdraw his

discriminatory and defamatory directive

that Catholic Charities of the Archdiocese

of San Francisco stop placing children in

need of adoption with homosexual

households.

WHEREAS, It is an insult to all San

Franciscans when a foreign country, like the

Vatican, meddles with and attempts to

negatively influence this great City’s existing

and established customs and traditions such as

the right of same-sex couples to adopt and care

for children in need; and

WHEREAS, The statements of Cardinal Levada

and the Vatican that “Catholic agencies should

' We have jurisdiction under 28 U.S.C. § 1291

89a

not place children for adoption in homosexual

households,” and “Allowing children to be

adopted by persons living in such unions would

actually mean doing violence to these children”

are absolutely unacceptable to the citizenry of

San Francisco; and

WHEREAS, Such hateful and discriminatory

rhetoric is both insulting and callous, and shows

a level of insensitivity and ignorance which has

seldom been encountered by this Board of

Supervisors; and

WHEREAS, Same-sex couples are just as

qualified to be parents as are heterosexual

couples; and

WiiEKREAS, Cardinal Levada is a decidedly

unqualified representative of his former home

city, and of the people of San Francisco and the

values they hold dear; and

WHEREAS, The Board of Supervisors urges

Archbishop Niederauer and the Catholic

Charities of the Archdiocese of San Francisco to

defy all discriminatory directives of Cardinal

Levada; now, therefore, be it

RESOLVED, That the Board of Supervisors

urges Cardinal William Levada, in his capacity

as head of the Congregation for the Doctrine of

the Faith at the Vatican (formerly known as

Holy Office of the Inquisition), to withdraw his

discriminatory and defamatory directive that

Catholic Charities of the Archdiocese of San

90a

Francisco stop placing children in need of

adoption with homosexual households.

The Board passed this resolution in response to a

then recent directive from Prefect Cardinal William

Levada, instructing the Archdiocese of San Francisco

that Catholic social services agencies should not place

children in need of adoption with gay or lesbian

couples.” Cardinal Levada is the head of the

Congregation for the Doctrine of the Faith—an official

body within the Catholic Church that, according to the

complaint, is charged with “promotling] and

safeguard|ing] the doctrine on the faith and morals

throughout the Catholic world.” The Resolution also

quotes a statement in a 2003 document issued by the

Congregation, titled “Considerations Regarding

Proposals to Give Legal Recognition to Unions

Between Homosexual Persons” (“Considerations

document”). The Resolution does not name or

specifically refer to the Considerations document, but

the League alleges that the language “Allowing

children to be adopted by persons living in

[homosexual] unions would actually mean doing

violence to these children” is taken from the 2003

document.

Shortly after the Board adopted the Resolution,

Catholic League filed a 42 U.S.C. § 1983 suit in the

Northern District of California, alleging that the

Resolution violates the Establishment Clause by

expressing disapproval of and hostility towards the

Catholic Church and Catholic religious tenets. Catholic

“ Cardinal Levada’s communique is not part of the record in this

case.

Gla

League sought “nominal damages, a declaration that

this anti-Catholic resolution is unconstitutional, and a

permanent injunction enjoining this and other official

resolutions, pronouncements, or declarations against

Catholics and their religious beliefs.”

The Defendants-Appellees’ filed a Federal Rule of

Civil Procedure 12(b)(6) motion to dismiss, which the

district court granted in a thorough and well-reasoned

decision. Applying the three-part Lemon test, the

district court determined that the Resolution did not

have a purpose secondary to a predominant religious

purpose nor a primary effect of expressing hostility

towards the Catholic religion and that the resolution

did not foster excessive government entanglement with

religion. See Lemon v. Kurtzman, 403 U.S. 602 (1971);

Catholic League v. City and County of San Francisco,

464 F. Supp. 2d 938 (N.D. Cal. 2006). As a result, the

court concluded that Catholic League failed to state a

claim under § 1983 for violation of the Establishment

Clause and dismissed the complaint. Catholic League

timely appealed.

Il.

We review de novo a dismissal for failure to state a

claim under Rule 12(b)(6). Vasquez v. Los Angeles

County, 487 F.3d 1246, 1249 (9th Cir. 2007). In

addressing cases in this posture, we must accept the

allegations in the complaint as true, and draw all

* The Defendants-Appellees include the City and County of San

Francisco; Aaron Peskin, in his official capacity as President,

Board of Supervisors, City and County of San Francisco; and Tom

Ammiano, in his official capacity as a Supervisor, Board of

Supervisors, City and County of San Francisco.

92a

reasonable inferences in favor of the _ plaintiff.

However, “ ‘conclusory allegations of law and

unwarranted inferences’ will not defeat an otherwise

proper motion to dismiss.” /d. (quoting Schmier v. U_S.

Court of Appeals for the Ninth Circuit, 279 F.3d 817,

820 (9th Cir. 2002)).

Hl.

[i] “{Tlhe ‘First Amendment mandates

governmental neutrality between religion and religion

and between religion and nonreligion.’ ” McCreary

County v. ACLU, 545 U.S. 844, 860 (2005) (quoting

Epperson v. Arkansas, 393 U.S. 97, 104 (1968)). This

constitutional mandate requires careful and nuanced

consideration in a society like ours where religion has

long played a pervasive social role; government

conduct towards religion “must be judged in its unique

circumstances to determine whether it constitutes an

endorsement or disapproval of religion.” Lynch ov.

Donnelly, 465 U.S. 668, 694 (1984) (O’Connor, J.,

concurring).

[2] We apply the three-part Lemon test to

determine whether government conduct—either

through endorsement of religion or hostility towards

it—violates the Establishment Clause. Government

action will pass muster if it “(1) has a secular purpose;

(2) has a principal or primary effect that neither

advances nor disapproves of religion; and (3) does not

foster excessive governmental entanglement with

religion.” Vasquez, 487 F.3d at 1255 (citing Lemon, 403

U.S. at 612-13). Failure to satisfy any of these three

inquiries condemns government conduct’ as

unconstitutional.

93a

[3] Although the courts have not often had occasion

to determine whether government action effects a

disapproval of religion, as opposed to an endorsement,

the Establishment Clause’s neutrality mandate applies

here with equal force. We are guided in our analysis by

American Family Association, one of only a handful of

disapproval cases, which dealt with another set of

resolutions adopted by the San Francisco Board of

Supervisors. American Family Association treated

disapproval and endorsement as flip-sides of the same

coin—the same legal tests and underlying First

Amendment values apply. We phrased the applicable

principle in several ways—the state may not

disapprove of religion, express hostility towards

religion, nor inhibit religion, American Family Ass'n,

277 F.3d at 1121, 1122‘—and used the three terms

interchangeably.

A.

The first step in the Lemon analysis is to discern

the government’s actual purpose in taking the

challenged action—in this case, adopting the

Resolution. A “predominantly religious purpose”

violates the Establishment Clause. McCreary County,

545 U.S. at 881. Government action, however, satisfies

the purpose prong if it is “grounded in a secular

purpose.” Vasquez, 487 F.3d at 1255. Furthermore, “[a]

legislature’s stated reasons will generally get

‘ The disapproval language appears to come from Church of the

Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532

(1993), a Free Exercise Clause case; the inhibit language is drawn

from Lemon, see Lemon, 403 U.S. at 612, and its predecessors,

including School Dist. of Abington Tp. v. Schempp, 374 U.S. 203,

222 (1963).

94a

deference, {but] the secular purpose required has to be

genuine, not a sham, and not merely secondary to a

religious objective.” McCreary County, 545 U.S. at 864.

Catholic League argues that it is evident from the

face of the Resolution that the City’s predominant

purpose was to attack Catholic religious beliefs. The

League points to the resolution’s harsh and forceful

language as betraying the Board’s true intentions:

“discriminatory,” “defamatory,” “absolutely

unacceptable,” “hateful and discriminatory,” “insulting

and callous,” and “show[ing] a level of insensitivity and

ignorance which has seldom been encountered.” The

Board counters that, despite the inflammatory

language, it passed the resolution for secular

purposes.°

[4] As we explained in American Family

Association, we do not question whether the Board’s

° Our earlier cases held that even one secular purpose out of

several was sufficient. That is, government action failed “the

purpose prong ‘only if it [was] motivated wholly by an

impermissible purpose.’ ” American Family Ass’n v. City and

County of San Francisco, 277 F.3d 1114, 1121 (9th Cir. 2002)

(quoting Kreisner v. City of San Diego, 1 F.3d 775, 782 (9th Cir.

1993). But see Vernon v. City of Los Angeles, 27 F.3d 1385, 1397

(9th Cir. 1994) (“[W]Je believe that the Supreme Court has

articulated a slightly more stringent test, which requires that the

‘actual’ or ‘primary’ purpose of the government action be

secular.”). McCreary County clarifies, however, that the inquiry is

whether the government acted with a “predominantly” religious

purpose. See McCreary County, 545 U.S. at 862 (“predominantly

religious purpose”); zd. at 863 (“predominant purpose of advancing

religion”); id. at 881 (“predominantly religious purpose”); id. at

864 (secular purpose cannot be “merely secondary to a religious

objective”).

95a

actions were wise; “rather we determine the

constitutionality of those actions.” American Family

Ass’n, 277 F.3d at 1122. See also Brown v. Woodland

Joint Unified School District, 27 F.3d 1373, 1382 (9th

Cir. 1994) (“[O]nce the state is free to use a secular

means of attaining a goal, it is not required to use an

alternative secular means that is less likely to be

associated with religion.”). To be sure, the Board could

have spoken with a gentler tone, but the strength of

the Board’s language alone does not transform a

secular purpose into a religious one. The constitutional

question remains whether the Board’s purpose in

adopting the Resolution was secular in nature. In

other words, we must first decide whether the Board’s

purpose in criticizing the Cardinal’s directive was

disapproval of religious doctrine, or a call for non-

discrimination in the adoption of children, and second

whether for Establishment Clause purposes there is a

difference between the two.°

“The eyes that look to purpose belong to an

‘objective observer.’ ” McCreary County, 545 U.S. at

862 (quoting Santa Fe Independent School Dist. v. Doe,

530 U.S. 290, 308 (2000)). The objective observer is

“one presumed to be familiar with the history of the

government’s actions and competent to learn what

history has to show.” Jd. at 866. In so describing the

objective observer, the Supreme Court has instructed

that we cannot “cut the context” out of the purpose

inquiry. Jd. at 864. Examining the Board’s resolution

in context, the district court correctly concluded that

the objective observer would ascertain a_ secular

° We revisit the Resolution’s tone in the effects analysis, where the

choice of language may have a different impact.

96a

purpose behind the Board’s adoption of the non

binding Resolution.’

[5] The Board argues that its predominant purpose

in adopting the Resolution was to “denounce

discrimination against same-sex couples, and to try to

preserve for San Francisco children the opportunity to

be placed for adoption with qualified families without

regard to sexual orientation.” That purpose is set out

by both the title and preamble of the Resolution.

Indeed, the title states: “Resolution urging Cardinal

Levada to withdraw his directive to Catholic Charities

’ Although the purpose test has always called on us to discern the

government’s actual purpose, see American Family Ass'n, 277 F.3d

at 1121; Kretsner, 1 F.3d at 782, McCreary County recently

sharpened the inquiry. The Court announced that purpose must

be evaluated from the perspective of an objective observer. The

Second Circuit has suggested that after McCreary County the

courts must now engage in two distinct inquires—one to assess

the government’s “actual” purpose, and another to ask how “the

government’s purpose is perceived by an objective observer.”

Skoros v. City of New York, 437 F.3d 1, 22 (2d Cir. 2006 ) (interna!

quotations omitted). We do not read McCreary County as adopting

a two part inquiry for evaluating government purpose. By

adopting an sbjective test, the Court dismissed the petitioners’

assertion that “true ‘purpose’ is unknowable, and its search [is]

merely an excuse for courts to act selectively and unpredictably in

picking out evidence of subjective intent.” McCreary County, 545

U.S. at 861. As the Court explained, the purpose inquiry is not an

invitation to courts to cherry pick; instead, “scrutinizing purpose

does make practical sense, as in Establishment Clause analysis,

where an understanding of official objective emerges from readily

discoverable fact, without any judicial psychoanalysis of a

drafter’s heart of hearts.” /d. at 862. Toward that end the Court

noted that “[t]he eyes that look to purpose belong to an ‘objective

observer.’” Jd. In other words, we use the objective observer—one

who takes account of history and context—to discern the

government’s “actual” purpose.

97a

forbidding the placement of children in need of

adoption with same-sex couples.” And to emphasize,

the preamble declares: “Resolution urging Cardinal

William Levada, in his capacity as head of the

Congregation for the Doctrine of the Faith at the

Vatican, to withdraw his discriminatory and

defamatory directive that Catholic Charities of the

Archdiocese of San Francisco stop placing children in

need of adoption with homosexual households.” This

theme is born out in the opening paragraph, which

places the Resolution in the context of San Francisco’s

“existing and established customs and traditions such

as the right of same-sex couples to adopt and care for

children in need,” and continues throughout the text,

which explains that “[slame-sex couples are just as

qualified to be parents as are heterosexual couples.” It

is apparent that the Resolution is about non-

discrimination in adoption.

In addition, the timing of the Resolution lends

further context and supports the Board’s asserted

purpose. See McCreary County, 545 U.S. at 866

(quoting Santa Fe, 530 U.S. at 315) (“[RJeasonable

observers have reasonable memories, and our

precedents sensibly forbid an observer ‘to turn a blind

eye to the context in which [the] policy arose.’ ”

(quoting Santa Fe, 530 U.S. at 315)). The Congregation

for the Doctrine of the Faith issued its clarion call

against legalization of gay and lesbian unions, as an

exposition of religious belief, in 2003. It was not until

March 2006, days after Cardinal Levada directed

Catholic Charities, a social services agency in the City

of San Francisco, to stop placing children for adoption

with gay and lesbians couples, that the Board adopted

this resolution. Keeping in mind the context in which

the Resolution arose, the objective observer would

98a

conclude that the Board’s purpose in adopting the

Resolution was to respond to a public action that

would affect both its gay and lesbian constituents, as

well as the children in the City and County’s

jurisdiction. The Board’s focus was on same-sex

couples, not Catholics.

{6} Moreover, “[a] reviewing court must be

‘reluctant to attribute unconstitutional motives’ to

government actors in the face of a plausible secular

purpose.” Kreisner, 1 F.3d at 782 (quoting Mueller v.

Allen, 463 U.S. 388, 394-95 (1983)). In light of this

proscription, and the Resolution’s focus on and stated

goal of protecting and promoting adoption by same-sex

couples, an objective observer would conclude that the

Board’s purpose was to champion needy children, gays,

lesbians, and same-sex couples within its jurisdiction;

not to officially disapprove of the Catholic faith or its

religious tenets.

Catholic League maintains, however, that this is a

distinction without a difference. It argues that the

Board’s support for same-sex adoption, and its basic

underlying assumption that same-sex couples should

be treated no _ differently than heterosexual

couples—and that anything less is discriminatory,

defamatory, and hateful—expresses hostility toward

their religious beliefs that homosexuality is “deviant,”

and “intrinsically disordered,” homosexual acts are

“acts of grave depravity,” homosexual unions are

“clearly .. . immoral,” and “lalllowing children to be

adopted by persons living in such unions would

actually mean doing violence to these children.”

As the district court noted, same-sex adoption is “a

secular dimension of the City’s culture and tradition

99a

that the City believes is threatened by the specific

directive issued to the Archdiocese.” Catholic League,

464 F. Supp. 2d at 944. The Board considers its

Resolution as a secular message promoting same-sex

adoption—a message that is in accord with a bevy of

California and San Francisco laws and policies that

promote equal rights for gays and lesbians and their

families, see In re Marriage Cases, 43 Cal. 4th 757

(2008) (documenting the City and County of San

Francisco's involvement as a plaintiffin t

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